Introduction
1. Before this Court for determination is the Notice of Motion dated 6th March 2026 in which the Applicant seeks an order reviewing, varying and/or setting aside Order No. 6 of the ruling delivered by this Court on 5th February 2026. By that order, the Court granted a conditional stay of execution pending appeal upon terms that the Applicant deposits Kenya Shillings Seven Million (Kshs.7,000,000/=) in a joint interest-earning account in the names of the parties' advocates within thirty (30) days, failing which the stay would automatically stand vacated.
2. The Motion is expressed to be brought under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, Article 50 of the Constitution and all other enabling provisions of the law. The Applicant principally prays that the Court removes the requirement to deposit the said sum on the ground that it is beyond his financial ability and substitutes it with such other condition as the Court may consider just.
3. The application is supported by the affidavit of Mr. Allan Kibet, learned counsel for the Applicant. Counsel depones, on the basis of instructions received from his client, that the Applicant is financially incapable of complying with the security ordered by the Court and that unless the order is reviewed, the stay granted on 5th February 2026 will lapse, thereby exposing the Applicant to execution before the intended appeal is heard.
4. Counsel further deposes that the intended appeal raises serious questions touching on the jurisdiction of the subordinate court, the effect of the arbitration clause contained in the parties' agreement, and the alleged want of service of summons before the judgment of 3rd July 2023 was entered.
5. The Respondent opposes the Motion through the Replying Affidavit sworn by Suleka Alia Duale on 12th June 2026, together with written submissions. The Respondent contends that the application is incompetent, misconceived and devoid of merit because it fails to satisfy any of the statutory grounds upon which this Court may review its own decision.
6. The Respondent further maintains that the application is, in substance, an invitation to the Court to reconsider its earlier exercise of discretion regarding the amount of security ordered, a matter which properly falls within the jurisdiction of an appellate court.
7. The Respondent additionally raises several preliminary objections. It is argued that the Applicant failed to annex the formal order sought to be reviewed; that the conditional stay granted by this Court had already lapsed by operation of its own terms before the present Motion was filed; that the Court is functus officio in relation to the exercise of its discretion under Order 42 Rule 6 of the Civil Procedure Rules; and that the alleged financial incapacity relied upon by the Applicant is unsupported by objective evidence and is contradicted by the Applicant's own deposition before the Court of Appeal.
Analysis and determination
8. I have considered the Motion, the affidavits filed by the parties, the rival submissions and the authorities cited. The determination of the application turns upon a single question, namely whether the Applicant has established any of the grounds recognised under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules to warrant this Court reviewing its ruling of 5th February 2026.
9. The Applicant's case is that the security ordered by the Court is excessive and unattainable. It is contended that the requirement to deposit Kshs.7,000,000/= effectively denies the Applicant access to justice by rendering the right of appeal illusory. The Applicant further argues that the intended appeal raises fundamental questions concerning the jurisdiction of the subordinate court, the existence of an arbitration agreement providing for arbitration in Helsinki, Finland under the ICC Rules, and the alleged absence of service of summons before the judgment was entered. According to the Applicant, these matters constitute sufficient reason for the Court to revisit its earlier order.
10. The Respondent takes a contrary view. It submits that the jurisdiction of review is confined to the grounds expressly stipulated under Order 45 Rule 1 and cannot be invoked merely because a party is dissatisfied with the Court's exercise of discretion. The Respondent contends that none of the matters now relied upon by the Applicant constitutes a discovery of new evidence or an error apparent on the face of the record, and that the application is nothing more than an attempt to re-litigate issues already determined by the Court.
11. The Respondent also submits that the plea of financial incapacity is unsupported by any documentary evidence and is advanced only through an affidavit sworn by counsel. It argues that the Applicant himself has not sworn an affidavit explaining his alleged inability to comply with the order, notwithstanding that his financial position is a matter peculiarly within his personal knowledge. According to the Respondent, this omission substantially weakens the factual foundation of the application.
12. The Respondent maintains that the issues relating to jurisdiction, the arbitration clause and the alleged want of service are matters that were known to the Applicant long before the ruling of 5th February 2026 and formed part of the material considered by the Court in determining the earlier application for leave to appeal out of time and stay pending appeal. It is therefore submitted that those matters cannot properly constitute grounds for review.
13. The jurisdiction of a court to review its own decree or order is neither inherent nor unlimited. It is a special statutory jurisdiction conferred by Section 80 of the Civil Procedure Act and regulated by Order 45 Rule 1 of the Civil Procedure Rules. Being an exception to the principle of finality in litigation, it must be exercised strictly within the limits prescribed by law.
14. Under Order 45 Rule 1, a review may only be granted where an applicant demonstrates the discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced when the order was made; where there exists a mistake or error apparent on the face of the record; or where there is any other sufficient reason analogous to the foregoing grounds. The application must also be presented without unreasonable delay.
15. The distinction between a review and an appeal is now firmly settled. In National Bank of Kenya Limited Vs Ndungu Njau [1997] KECA 389 (KLR), the Court of Appeal held that a review is available to correct a patent error or omission on the face of the record but cannot be used to challenge the correctness of a decision on its merits. If a court has reached what a party considers to be an erroneous conclusion of law or fact, the proper remedy is an appeal and not a review. The same principle was reaffirmed in Origo & another v Mungala (Civil Appeal 149 of 2001) [2005] KECA 356 (KLR) and later in Swai v Kenya Breweries Limited (Civil Appeal 275 of 2010) [2014] KECA 883 (KLR), where the Court of Appeal reiterated that review is not a mechanism for reopening or rearguing matters that were available for determination when the impugned decision was made.
16. Against the foregoing legal framework, I now turn to the question of whether the Applicant has demonstrated any of the statutory grounds upon which this Court may properly exercise its review jurisdiction.
17. The principal complaint advanced by the Applicant is that the requirement to deposit Kshs.7,000,000/= as security is excessive, financially unattainable and has the practical effect of denying him access to justice. The Applicant therefore urges the Court to substitute that condition with one that is less onerous. While that argument is understandable from the Applicant's perspective, the question before this Court is not whether another Judge might have imposed a different condition. Rather, the question is whether the order made on 5th February 2026 discloses any ground recognised in law for review.
18. In my considered view, the Applicant has not demonstrated that the order complained of resulted from the discovery of any new and important matter or evidence. The alleged inability to raise the sum ordered was a matter peculiarly within the Applicant's own knowledge at the time the ruling was delivered. It is not suggested that the financial circumstances now relied upon arose after the delivery of the ruling or that they could not, through the exercise of due diligence, have been brought to the Court's attention when the application for stay pending appeal was being determined. This ground therefore fails.
19. Equally, I discern no error apparent on the face of the record. An error apparent is one that is self-evident and does not require elaborate argument or a process of reasoning to establish. It is not enough that a party considers the Court to have reached an erroneous conclusion or exercised its discretion wrongly. Such complaints go to the merits of the decision itself and are properly ventilated before an appellate court. The Applicant has not identified any patent error, accidental omission or manifest mistake appearing on the face of the ruling of 5th February 2026.
20. Indeed, a careful reading of the present Motion demonstrates that the Applicant does not complain of an obvious error in the ruling. Rather, he invites this Court to reconsider the quantum of security ordered and to arrive at a different conclusion from that previously reached. That invitation necessarily requires the Court to revisit the merits of its own exercise of discretion. Such an exercise would exceed the limited jurisdiction conferred by Order 45 Rule 1 and would effectively convert the review process into an appeal against the Court's own decision, contrary to the settled jurisprudence of our superior courts.
21. The Court bears in mind the purpose for which security is ordinarily ordered in applications for stay pending appeal. The requirement for security is neither punitive nor intended to obstruct a litigant's right of appeal. Rather, it serves to strike a fair balance between two competing rights: the right of an unsuccessful litigant to pursue an appeal without the appeal being rendered nugatory, and the equally important right of a successful litigant to enjoy the fruits of a lawful judgment without undue prejudice. The amount and nature of such security are matters committed to the Court's judicial discretion, to be exercised upon consideration of all the circumstances of the particular case.
22. In the ruling delivered on 5th February 2026, this Court expressly exercised that discretion after considering the material then placed before it. Having granted leave to appeal out of time and a conditional stay of execution, the Court considered it appropriate, in light of the circumstances then prevailing, to require the Applicant to deposit Kshs.7,000,000/= in a joint interest-earning account as a condition for the continuation of the stay. The order was therefore not arbitrary but formed part of the Court's overall balancing of the competing interests of the parties.
23. It follows that dissatisfaction with the amount of security ordered cannot, without more, justify a review of that order. Were courts to revisit discretionary orders merely because a party subsequently considers them burdensome or onerous, the distinction between review and appeal would become illusory, and the principle of finality in judicial proceedings would be seriously undermined.
24. The Applicant has also relied upon the alleged lack of jurisdiction of the subordinate court, the existence of an arbitration agreement providing for arbitration in Helsinki under the ICC Rules, and the alleged failure of service before the judgment of 3rd July 2023. These are undoubtedly important issues. However, they are not new matters discovered after the ruling of 5th February 2026. They constituted the very foundation of the Applicant's earlier application for leave to appeal out of time and stay of execution, and they were matters which this Court considered in exercising its discretion before granting the conditional stay.
25. Once a court has considered particular facts and legal arguments in arriving at its determination, the same matters cannot ordinarily be reintroduced through an application for review merely because the unsuccessful party desires a different outcome. To permit such a course would amount to a collateral attack upon a concluded judicial determination and would erode the distinction carefully maintained by the Civil Procedure Act between review proceedings and appellate proceedings.
26. The Applicant further invokes the phrase "any other sufficient reason" appearing in Order 45 Rule 1. That phrase, however, cannot be interpreted in isolation. As explained in Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] KEHC 1412 (KLR), the phrase must be construed ejusdem generis with the other statutory grounds for review. It therefore contemplates reasons analogous to the discovery of new evidence or an error apparent on the face of the record. It does not confer upon the Court an unrestricted discretion to reopen concluded decisions whenever a litigant considers the result to be harsh or inconvenient.
27. I am unable to find that the circumstances relied upon by the Applicant satisfy that threshold. The alleged financial hardship, the jurisdictional objections, the arbitration clause and the challenge to service all relate to matters either considered by the Court when the impugned ruling was rendered or matters that were fully within the Applicant's knowledge at that time. They therefore fall outside the scope of the review jurisdiction created by Order 45 Rule 1.
28. I have also considered the evidentiary foundation upon which the Motion is presented. The Applicant's alleged inability to comply with the order of security is deponed to exclusively by his advocate, who states that the information is derived from instructions received from the Applicant. While there is no absolute prohibition against an advocate swearing an affidavit on behalf of a client in appropriate circumstances, financial capacity is ordinarily a matter within the personal knowledge of the litigant concerned. In the present case, the Applicant has not sworn an affidavit explaining his financial position, nor has he produced any documentary material capable of objectively demonstrating the alleged inability to raise the security ordered. In those circumstances, the evidential weight of the assertion is necessarily diminished.
29. The Respondent has invited the Court to determine several additional issues, including whether the formal order sought to be reviewed was annexed to the application, whether the conditional stay had already lapsed by operation of its own terms, and whether the Court is functus officio. Those arguments were ably presented and merit acknowledgment. Nevertheless, having found that the Applicant has failed to satisfy the substantive statutory requirements for review, I do not consider it necessary to pronounce myself conclusively on each of those objections. Even assuming, in favour of the Applicant, that no procedural impediment existed, the Motion would still fail for want of a proper legal basis under Section 80 of the Civil Procedure Act and Order 45 Rule 1.
30. Consequently, the Notice of Motion dated 6th March 2026 fails and is hereby dismissed with costs.
31. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent
1. Before this Court for determination is the Notice of Motion dated 6th March 2026 in which the Applicant seeks an order reviewing, varying and/or setting aside Order No. 6 of the ruling delivered by this Court on 5th February 2026. By that order, the Court granted a conditional stay of execution pending appeal upon terms that the Applicant deposits Kenya Shillings Seven Million (Kshs.7,000,000/=) in a joint interest-earning account in the names of the parties' advocates within thirty (30) days, failing which the stay would automatically stand vacated.
2. The Motion is expressed to be brought under Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, Article 50 of the Constitution and all other enabling provisions of the law. The Applicant principally prays that the Court removes the requirement to deposit the said sum on the ground that it is beyond his financial ability and substitutes it with such other condition as the Court may consider just.
3. The application is supported by the affidavit of Mr. Allan Kibet, learned counsel for the Applicant. Counsel depones, on the basis of instructions received from his client, that the Applicant is financially incapable of complying with the security ordered by the Court and that unless the order is reviewed, the stay granted on 5th February 2026 will lapse, thereby exposing the Applicant to execution before the intended appeal is heard.
4. Counsel further deposes that the intended appeal raises serious questions touching on the jurisdiction of the subordinate court, the effect of the arbitration clause contained in the parties' agreement, and the alleged want of service of summons before the judgment of 3rd July 2023 was entered.
5. The Respondent opposes the Motion through the Replying Affidavit sworn by Suleka Alia Duale on 12th June 2026, together with written submissions. The Respondent contends that the application is incompetent, misconceived and devoid of merit because it fails to satisfy any of the statutory grounds upon which this Court may review its own decision.
6. The Respondent further maintains that the application is, in substance, an invitation to the Court to reconsider its earlier exercise of discretion regarding the amount of security ordered, a matter which properly falls within the jurisdiction of an appellate court.
7. The Respondent additionally raises several preliminary objections. It is argued that the Applicant failed to annex the formal order sought to be reviewed; that the conditional stay granted by this Court had already lapsed by operation of its own terms before the present Motion was filed; that the Court is functus officio in relation to the exercise of its discretion under Order 42 Rule 6 of the Civil Procedure Rules; and that the alleged financial incapacity relied upon by the Applicant is unsupported by objective evidence and is contradicted by the Applicant's own deposition before the Court of Appeal.
Analysis and determination
8. I have considered the Motion, the affidavits filed by the parties, the rival submissions and the authorities cited. The determination of the application turns upon a single question, namely whether the Applicant has established any of the grounds recognised under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules to warrant this Court reviewing its ruling of 5th February 2026.
9. The Applicant's case is that the security ordered by the Court is excessive and unattainable. It is contended that the requirement to deposit Kshs.7,000,000/= effectively denies the Applicant access to justice by rendering the right of appeal illusory. The Applicant further argues that the intended appeal raises fundamental questions concerning the jurisdiction of the subordinate court, the existence of an arbitration agreement providing for arbitration in Helsinki, Finland under the ICC Rules, and the alleged absence of service of summons before the judgment was entered. According to the Applicant, these matters constitute sufficient reason for the Court to revisit its earlier order.
10. The Respondent takes a contrary view. It submits that the jurisdiction of review is confined to the grounds expressly stipulated under Order 45 Rule 1 and cannot be invoked merely because a party is dissatisfied with the Court's exercise of discretion. The Respondent contends that none of the matters now relied upon by the Applicant constitutes a discovery of new evidence or an error apparent on the face of the record, and that the application is nothing more than an attempt to re-litigate issues already determined by the Court.
11. The Respondent also submits that the plea of financial incapacity is unsupported by any documentary evidence and is advanced only through an affidavit sworn by counsel. It argues that the Applicant himself has not sworn an affidavit explaining his alleged inability to comply with the order, notwithstanding that his financial position is a matter peculiarly within his personal knowledge. According to the Respondent, this omission substantially weakens the factual foundation of the application.
12. The Respondent maintains that the issues relating to jurisdiction, the arbitration clause and the alleged want of service are matters that were known to the Applicant long before the ruling of 5th February 2026 and formed part of the material considered by the Court in determining the earlier application for leave to appeal out of time and stay pending appeal. It is therefore submitted that those matters cannot properly constitute grounds for review.
13. The jurisdiction of a court to review its own decree or order is neither inherent nor unlimited. It is a special statutory jurisdiction conferred by Section 80 of the Civil Procedure Act and regulated by Order 45 Rule 1 of the Civil Procedure Rules. Being an exception to the principle of finality in litigation, it must be exercised strictly within the limits prescribed by law.
14. Under Order 45 Rule 1, a review may only be granted where an applicant demonstrates the discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced when the order was made; where there exists a mistake or error apparent on the face of the record; or where there is any other sufficient reason analogous to the foregoing grounds. The application must also be presented without unreasonable delay.
15. The distinction between a review and an appeal is now firmly settled. In National Bank of Kenya Limited Vs Ndungu Njau [1997] KECA 389 (KLR), the Court of Appeal held that a review is available to correct a patent error or omission on the face of the record but cannot be used to challenge the correctness of a decision on its merits. If a court has reached what a party considers to be an erroneous conclusion of law or fact, the proper remedy is an appeal and not a review. The same principle was reaffirmed in Origo & another v Mungala (Civil Appeal 149 of 2001) [2005] KECA 356 (KLR) and later in Swai v Kenya Breweries Limited (Civil Appeal 275 of 2010) [2014] KECA 883 (KLR), where the Court of Appeal reiterated that review is not a mechanism for reopening or rearguing matters that were available for determination when the impugned decision was made.
16. Against the foregoing legal framework, I now turn to the question of whether the Applicant has demonstrated any of the statutory grounds upon which this Court may properly exercise its review jurisdiction.
17. The principal complaint advanced by the Applicant is that the requirement to deposit Kshs.7,000,000/= as security is excessive, financially unattainable and has the practical effect of denying him access to justice. The Applicant therefore urges the Court to substitute that condition with one that is less onerous. While that argument is understandable from the Applicant's perspective, the question before this Court is not whether another Judge might have imposed a different condition. Rather, the question is whether the order made on 5th February 2026 discloses any ground recognised in law for review.
18. In my considered view, the Applicant has not demonstrated that the order complained of resulted from the discovery of any new and important matter or evidence. The alleged inability to raise the sum ordered was a matter peculiarly within the Applicant's own knowledge at the time the ruling was delivered. It is not suggested that the financial circumstances now relied upon arose after the delivery of the ruling or that they could not, through the exercise of due diligence, have been brought to the Court's attention when the application for stay pending appeal was being determined. This ground therefore fails.
19. Equally, I discern no error apparent on the face of the record. An error apparent is one that is self-evident and does not require elaborate argument or a process of reasoning to establish. It is not enough that a party considers the Court to have reached an erroneous conclusion or exercised its discretion wrongly. Such complaints go to the merits of the decision itself and are properly ventilated before an appellate court. The Applicant has not identified any patent error, accidental omission or manifest mistake appearing on the face of the ruling of 5th February 2026.
20. Indeed, a careful reading of the present Motion demonstrates that the Applicant does not complain of an obvious error in the ruling. Rather, he invites this Court to reconsider the quantum of security ordered and to arrive at a different conclusion from that previously reached. That invitation necessarily requires the Court to revisit the merits of its own exercise of discretion. Such an exercise would exceed the limited jurisdiction conferred by Order 45 Rule 1 and would effectively convert the review process into an appeal against the Court's own decision, contrary to the settled jurisprudence of our superior courts.
21. The Court bears in mind the purpose for which security is ordinarily ordered in applications for stay pending appeal. The requirement for security is neither punitive nor intended to obstruct a litigant's right of appeal. Rather, it serves to strike a fair balance between two competing rights: the right of an unsuccessful litigant to pursue an appeal without the appeal being rendered nugatory, and the equally important right of a successful litigant to enjoy the fruits of a lawful judgment without undue prejudice. The amount and nature of such security are matters committed to the Court's judicial discretion, to be exercised upon consideration of all the circumstances of the particular case.
22. In the ruling delivered on 5th February 2026, this Court expressly exercised that discretion after considering the material then placed before it. Having granted leave to appeal out of time and a conditional stay of execution, the Court considered it appropriate, in light of the circumstances then prevailing, to require the Applicant to deposit Kshs.7,000,000/= in a joint interest-earning account as a condition for the continuation of the stay. The order was therefore not arbitrary but formed part of the Court's overall balancing of the competing interests of the parties.
23. It follows that dissatisfaction with the amount of security ordered cannot, without more, justify a review of that order. Were courts to revisit discretionary orders merely because a party subsequently considers them burdensome or onerous, the distinction between review and appeal would become illusory, and the principle of finality in judicial proceedings would be seriously undermined.
24. The Applicant has also relied upon the alleged lack of jurisdiction of the subordinate court, the existence of an arbitration agreement providing for arbitration in Helsinki under the ICC Rules, and the alleged failure of service before the judgment of 3rd July 2023. These are undoubtedly important issues. However, they are not new matters discovered after the ruling of 5th February 2026. They constituted the very foundation of the Applicant's earlier application for leave to appeal out of time and stay of execution, and they were matters which this Court considered in exercising its discretion before granting the conditional stay.
25. Once a court has considered particular facts and legal arguments in arriving at its determination, the same matters cannot ordinarily be reintroduced through an application for review merely because the unsuccessful party desires a different outcome. To permit such a course would amount to a collateral attack upon a concluded judicial determination and would erode the distinction carefully maintained by the Civil Procedure Act between review proceedings and appellate proceedings.
26. The Applicant further invokes the phrase "any other sufficient reason" appearing in Order 45 Rule 1. That phrase, however, cannot be interpreted in isolation. As explained in Arun C. Sharma v Ashana Raikundalia T/A A. Raikundalia & Co. Advocates & 4 others [2014] KEHC 1412 (KLR), the phrase must be construed ejusdem generis with the other statutory grounds for review. It therefore contemplates reasons analogous to the discovery of new evidence or an error apparent on the face of the record. It does not confer upon the Court an unrestricted discretion to reopen concluded decisions whenever a litigant considers the result to be harsh or inconvenient.
27. I am unable to find that the circumstances relied upon by the Applicant satisfy that threshold. The alleged financial hardship, the jurisdictional objections, the arbitration clause and the challenge to service all relate to matters either considered by the Court when the impugned ruling was rendered or matters that were fully within the Applicant's knowledge at that time. They therefore fall outside the scope of the review jurisdiction created by Order 45 Rule 1.
28. I have also considered the evidentiary foundation upon which the Motion is presented. The Applicant's alleged inability to comply with the order of security is deponed to exclusively by his advocate, who states that the information is derived from instructions received from the Applicant. While there is no absolute prohibition against an advocate swearing an affidavit on behalf of a client in appropriate circumstances, financial capacity is ordinarily a matter within the personal knowledge of the litigant concerned. In the present case, the Applicant has not sworn an affidavit explaining his financial position, nor has he produced any documentary material capable of objectively demonstrating the alleged inability to raise the security ordered. In those circumstances, the evidential weight of the assertion is necessarily diminished.
29. The Respondent has invited the Court to determine several additional issues, including whether the formal order sought to be reviewed was annexed to the application, whether the conditional stay had already lapsed by operation of its own terms, and whether the Court is functus officio. Those arguments were ably presented and merit acknowledgment. Nevertheless, having found that the Applicant has failed to satisfy the substantive statutory requirements for review, I do not consider it necessary to pronounce myself conclusively on each of those objections. Even assuming, in favour of the Applicant, that no procedural impediment existed, the Motion would still fail for want of a proper legal basis under Section 80 of the Civil Procedure Act and Order 45 Rule 1.
30. Consequently, the Notice of Motion dated 6th March 2026 fails and is hereby dismissed with costs.
31. It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAIROBI
THIS 17TH DAY OF SEPTEMBER 2026
HON. MR. JUSTICE MOSES ADO
Judge of the High Court
In the Presence of:
Moses C/A
……………… for the Applicant
……………for the Respondent