(On the application for review dated 25 th May 2025)
1. The matter before this Court stems from a Judgment delivered by the Hon. Justice Tabitha Ouya on 15 th May 2025 in respect of the appeal initiated by Hellen Njeri Nganga and Charles Mworia Mbui (also Appellants and/or Applicants) against Liyengwa Francis Okwaro (also Respondent).
2. The appeal had been consolidated with HCCA 475 of 2022 and both appeals emanated from the judgment of Hon. D.O. Mbeja dated 29 th May 2020 in Civil Suits Numbers 1060 of 2017 and 1059 of 2017 wherein the Respondent had been awarded Kshs. 1,000,000 and Kshs. 400,000 respectively as general damages.
3. Dissatisfied with the trial adjudicator’s findings, the Appellants lodged the appeal seeking the review or setting aside of the decision in the trial Magistrate’s Court.
4. The appeal was canvassed by written submissions though the Respondent seemed to have been uninclined in filing the submissions.
5. My learned Senior Judge rendered the impugned Judgment in which she noted at paragraph 13 that the Appellants on their part had failed to include in the Record of Appeal a copy of the ruling/judgment in 1059 of 2017. She went further to hold that:
This court finds that this ground of appeal is not supported by the record and must therefore fail.
6. The Appellants have returned to Court with the application for review in which they indicate that the Record of Appeal was available and explained that there were two separate Records of Appeal filed in the two appeals being this one and HCCA 475 of 2022 noting too that the two Appeals had been consolidated.
7. The Appellants have approached the Court under Order 45 Rule 1 and Order 51 of the Civil Procedure Rules in addition to the other cited sections of substantive legislation including Sections 3A and 80 of the Civil Procedure Act.
8. However, the Respondent opposes this application for reasons found in the Replying Affidavit sworn on 14 th July 2025 by his Advocate Patrick Waiganjo in which they primarily state that the court is functus officio and the conditions for orders sought have not been met.
9. One of the conditions is whether there was an error apparent on the face of the Judgment by the learned Judge.
10. It is not in doubt that the learned Judge referenced the failure to include one of the impugned Judgments in the Record of Appeal. It has been pointed out above that this statement was made at paragraph 13 of the Judgment.
11. Does that qualify as an error apparent that can be litigated under an application for review or is the Appellant trying to have a second bite at the cherry in this appellate Court by pointing out a matter that is appealable?
12. In this matter, the primary point of contention centers around the apparent failure to sight the impugned decision and whether the final decision turned on it.
13. Section 80 of the Civil Procedure Act and Order 45 Rules (1) and (2) provide the legal and procedural framework for applications for review.
Order 45 (1) (2) provides as follows:-
1. Application for review of decree or order [Order 45, rule 1]
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
14. The Rules then go ahead to provide to whom an application for review may be made. Order 45, rule 2 provides as follows:
(1) An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.
(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing .
(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.
15. It is clear that the Judge who heard the Appeal is no longer attached to the Court as she had been transferred. It is nonetheless noteworthy that the words used in the said Rule state that the application for review ‘may’ and not necessarily ‘shall’ be heard by any other Judge.
16. The Judgment that was made makes reference to the lack of the one document but it is only the Judge who can tell whether her decision turned on the absence of that document now that it appears that the document had been available.
17. It would therefore be imprudent for this Court to delve into the merits of this application when the orders being sought in the notice of motion include an order for the file herein to be transferred to the Hon. Justice Tabitha Ouya as she was the presiding judicial officer on the matter.
18. Having noted this imprudence, it is only fair that the application is remitted for hearing of the application for review and disposal before the original Judge.
19. Consequently, the substantive application is not determined before me save for the granting of the prayer that the matter be remitted to the original Judge for determination of the application for Review.
FINAL COURT ORDERS
20. Based on the legal and factual analysis detailed above, the final deductions of this Court are as follows:
a. The Appellant’s Notice of Motion dated 25 th May 2025 is hereby remitted to Hon. Justice Tabitha Ouya for hearing and determination.
Dated and Delivered Via Microsoft Teams at Nairobi this 18 th Day of June, 2026.
MURUNGA, J
Delivered on virtual platform in the presence of
Mutisi instructed by Humphreys for the Appellant
Mwende instructed by Waiganjo Wachira for the Respondent
Kevin Babu - Court Assistant
1. The matter before this Court stems from a Judgment delivered by the Hon. Justice Tabitha Ouya on 15 th May 2025 in respect of the appeal initiated by Hellen Njeri Nganga and Charles Mworia Mbui (also Appellants and/or Applicants) against Liyengwa Francis Okwaro (also Respondent).
2. The appeal had been consolidated with HCCA 475 of 2022 and both appeals emanated from the judgment of Hon. D.O. Mbeja dated 29 th May 2020 in Civil Suits Numbers 1060 of 2017 and 1059 of 2017 wherein the Respondent had been awarded Kshs. 1,000,000 and Kshs. 400,000 respectively as general damages.
3. Dissatisfied with the trial adjudicator’s findings, the Appellants lodged the appeal seeking the review or setting aside of the decision in the trial Magistrate’s Court.
4. The appeal was canvassed by written submissions though the Respondent seemed to have been uninclined in filing the submissions.
5. My learned Senior Judge rendered the impugned Judgment in which she noted at paragraph 13 that the Appellants on their part had failed to include in the Record of Appeal a copy of the ruling/judgment in 1059 of 2017. She went further to hold that:
This court finds that this ground of appeal is not supported by the record and must therefore fail.
6. The Appellants have returned to Court with the application for review in which they indicate that the Record of Appeal was available and explained that there were two separate Records of Appeal filed in the two appeals being this one and HCCA 475 of 2022 noting too that the two Appeals had been consolidated.
7. The Appellants have approached the Court under Order 45 Rule 1 and Order 51 of the Civil Procedure Rules in addition to the other cited sections of substantive legislation including Sections 3A and 80 of the Civil Procedure Act.
8. However, the Respondent opposes this application for reasons found in the Replying Affidavit sworn on 14 th July 2025 by his Advocate Patrick Waiganjo in which they primarily state that the court is functus officio and the conditions for orders sought have not been met.
9. One of the conditions is whether there was an error apparent on the face of the Judgment by the learned Judge.
10. It is not in doubt that the learned Judge referenced the failure to include one of the impugned Judgments in the Record of Appeal. It has been pointed out above that this statement was made at paragraph 13 of the Judgment.
11. Does that qualify as an error apparent that can be litigated under an application for review or is the Appellant trying to have a second bite at the cherry in this appellate Court by pointing out a matter that is appealable?
12. In this matter, the primary point of contention centers around the apparent failure to sight the impugned decision and whether the final decision turned on it.
13. Section 80 of the Civil Procedure Act and Order 45 Rules (1) and (2) provide the legal and procedural framework for applications for review.
Order 45 (1) (2) provides as follows:-
1. Application for review of decree or order [Order 45, rule 1]
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
14. The Rules then go ahead to provide to whom an application for review may be made. Order 45, rule 2 provides as follows:
(1) An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.
(2) If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing .
(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.
15. It is clear that the Judge who heard the Appeal is no longer attached to the Court as she had been transferred. It is nonetheless noteworthy that the words used in the said Rule state that the application for review ‘may’ and not necessarily ‘shall’ be heard by any other Judge.
16. The Judgment that was made makes reference to the lack of the one document but it is only the Judge who can tell whether her decision turned on the absence of that document now that it appears that the document had been available.
17. It would therefore be imprudent for this Court to delve into the merits of this application when the orders being sought in the notice of motion include an order for the file herein to be transferred to the Hon. Justice Tabitha Ouya as she was the presiding judicial officer on the matter.
18. Having noted this imprudence, it is only fair that the application is remitted for hearing of the application for review and disposal before the original Judge.
19. Consequently, the substantive application is not determined before me save for the granting of the prayer that the matter be remitted to the original Judge for determination of the application for Review.
FINAL COURT ORDERS
20. Based on the legal and factual analysis detailed above, the final deductions of this Court are as follows:
a. The Appellant’s Notice of Motion dated 25 th May 2025 is hereby remitted to Hon. Justice Tabitha Ouya for hearing and determination.
Dated and Delivered Via Microsoft Teams at Nairobi this 18 th Day of June, 2026.
MURUNGA, J
Delivered on virtual platform in the presence of
Mutisi instructed by Humphreys for the Appellant
Mwende instructed by Waiganjo Wachira for the Respondent
Kevin Babu - Court Assistant