1. By a Notice of Motion dated 13/03/2025, the Applicant seeks the following orders:
1) Spent.
2) That the Court be pleased to review and or vary the judgment delivered on 12/3/2025 specifically on the issue relating to the multiplicand.
3) That the judgment be reviewed and the multiplicand of Kshs. 7,980/= be substituted with a multiplicand of Kshs. 27,023.95/=
2. The application is supported by the Affidavit sworn by the Applicant, Flomena Tiriki Kimaiyo, on the same date.
3. The Applicant deposed that the Court delivered a judgment on 12/03/2025 where the Court in allowing the partial appeal altered the applied multiplicand from Kshs. 30,000/= to Kshs. 7,980/=, that while delivering the judgment the Court upheld the evidence and the fact that the deceased was a heavy commercial driver.
4. The Applicant further deposed that the accident occurred on 25th August 2018 as such the applicable Regulation is the one herein above stated. That while reviewing the multiplicand applied by the trial court, the learned judge observed that the applicable basic minimum wage to be applied was Kshs. 7,980/= per month as provided for in the Minimum Wage Regulation. That on perusing a downloaded copy of the Minimum Wage Regulation applicable by then being the Regulation of Wages (General) Amendment Order, 2018 that came in force on 1st of May 2018, the said Regulations and specifically item No.11 thereof which provides for the monthly wage of a driver of a heavy commercial vehicle, the wage within the municipalities is set at Kshs. 27,023.95/=.
5. The Applicant therefore submits that there is an error or mistake apparent on the record by the Court pegging the minimum monthly wage to be Kshs. 7,980/- which constitutes a mistake, inadvertence and or an error apparent on the record. The Applicant is aggrieved by the said inadvertence, error and or mistake and urges that the Court reviews its judgment and corrects the error or mistake.
Replying Affidavit
6. The Application is opposed by the Respondent. The Respondent filed a Replying Affidavit dated 24/03/2025.
7. The Respondent deposed that the application lacks merits, is misconceived and is an abuse of Court process. The Respondent contends that the application does meet the requirements of Order 45 of the Civil Procedure Rules for reason that there is no discovery of a new and important matter on evidence, there is no mistake or error apparent on the face of the record and there is no sufficient reason for review.
8. The Respondent further deposed that the issue of the multiplicand goes to the root of the judgment and is not is for a matter for review but for appeal. The Applicant contended that the Applicant in the instant application is trying to ask the Court to sit on appeal on its own judgment when it already functus officio and thus the application is fatally defective and an abuse of the Court process and should therefore be dismissed with costs.
9. The Applicant also filed a Supplementary Affidavit dated 1/4/2025, annexing a copy of the decree herein.
Submissions
10. The Application was canvassed vide written submissions. Both parties filed their respective submissions.
The Applicant’s Submissions
11. Counsel for the Applicant began by giving a brief summary of the contents of the Applicant’s Affidavit herein already captured. He submitted that from a perusal of the judgment delivered by this Court, the Court relied on the 2015 Minimum Wage Regulations and yet the regulations that were in force were the 2018 Minimum Wage Regulations and which copy of regulations were in fact on the record of appeal.
12. In regard to the issue of review, Counsel cited Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
13. Counsel cited the Supreme Court of Uganda In Edison Kanyabwera versus Pastori Tumwebaze (2005) UGSC 1, where the Court provided for what constitutes an error apparent on the face of the record, it stated as follows;
"it is stated that in order that an error maybe a ground for review, it must be one apparent on the face of the record, an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The error maybe one of fact, but it is not limited to matters of fact, and includes also an error of law."
14. Counsel cited the Court of Appeal in National Bank of Kenya Limited versus Ndungu Njau (1997) eKLR stated as follows;
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established."
15. Counsel also cited the Court of Appeal in the case of Muyodi v Industrial and Commercial Development Corporation & Anor [2006]1 EA 243 and also placed reliance on the case of Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR it was held: -
"Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting It to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay."
16. Counsel urged that the oversight and or error is self-evident error which does not require any extraneous matter to show its incorrectness. Counsel maintained that it is an error so manifest and clear that no court would permit such an error to remain on the record and further submitted that the application was brought on 13/3/2025 barely a day after delivery of judgement and thus was brought without undue delay.
17. In conclusion, Counsel urged the Court to allow the application by reviewing the judgement in so far as the multiplicand is concerned and thus order that the multiplicand shall be Kshs. 27,023/=.
Respondent’s Submissions
18. Counsel for the Respondent also reiterated that Section 80 of the Civil Procedure Act gives the power of review while Order 45 of the Civil Procedure Rules sets out the rules. Counsel observed that the rules restrict the grounds for review and reiterated those grounds deposed in their Replying Affidavit as already captured herein.
19. Counsel further submitted that in the instant application, the Applicant sought orders that the court reviews its judgement on the basis that there is a mistake or an error apparent on the face of the record in terms of the multiplicand used to calculate loss of dependency.
20. Counsel maintained that the error contemplated by Order 45 of the Civil Procedure Rules is self-evident and detectable and therefore does not require long debate and process of reasoning. An order or decision cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court on a point of fact or law. Counsel cited the case of National Bank of Kenya Limited versus Ndungu Njau (1997) eKLR (supra).
21. Counsel further observed that the Court of Appeal in the case of Rose Kaiza Vs Angelo Mpanju Kaiza 2009, the Court was categorical that;
"An application for review under order 44 Rules 1 of the Civil Procedure Rules must be clear and specific on the basis upon which it is made.
22. In determining that the Applicants' application fails to meet the threshold for review, Counsel implored to this Honourable Court to be guided by the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR where the Honourable Court in dismissing an application for review cited the case of Nyamogo & Nyamogo v Kogo where the court rendered itself as follows:
"An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal."
23. Counsel urged that the error the Applicant alleges the court made on the issue of the multiplicand goes to the root of the case. Counsel contended that the Applicant's assertion that the Learned judge made an error by applying a multiplicand of Kshs.7,966.80 as per The Regulation of Wages (Agricultural Industry) Amendment Order 2015 and that the court ought to have adopted The Regulation of Wages (General) Amendment Order 2018 which provides for a multiplicand Kshs.27,023.93 is not an error apparent on the record and as such, these assertions by the Applicant/Respondent ought to be dismissed as it pertains the substantive issues that are in contention in the suit and for the court to adopt the latter regulation, it will require the court to re analyse and make a long drawn process of reasoning on the point such that court would draw a different opinion as it will have to make a consideration as to which sector the deceased worked in during his lifetime.
24. Counsel further submitted that the court would need to evaluate the evidence on record to ascertain whether the required threshold in proving the net annual wage that was payable to the deceased. Thus, Counsel submitted that the ground of error or mistake is not sustainable in the instant application.
25. Counsel contended that the ground that the Applicant is relying on in her application is one for appeal and the court cannot grant this order as a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error, where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it.
26. Counsel further contended that the Applicants' application does not meet the criteria set forth as there is no error apparent on the record as alleged by the Applicant who has attached to her affidavit the Regulation of Wages (General) Amendment Order 2018 which was a totally different regulation for minimum wage governing the sector that the deceased worked in and was adopted by the court in coming up with its decision and which regulation was still in force at the time of death of the deceased.
27. Counsel urged that in the event that the Applicant feels aggrieved by the said decision, she ought to prefer an appeal and not an application for review as the points the Applicant raised in her application are grounds for an appeal rather than a review since this suit was heard, determined and judgement rendered and the Applicant appears to be inviting the court to sit an appeal on its own decision. Counsel submitted that in any case, while exercising the power of review, the court concerned cannot sit in appeal over its judgment/decision and therefore, this court has fulfilled its duties and has no further authority over this matter as the court is now functus officio.
28. In conclusion, Counsel submitted that the Applicant has failed to meet the threshold set for review of judgement as there is not mistake or error apparent on the face of the record and as such pray that the court dismisses the Applicant's application with cost to the Respondent.
Determination
29. It should be noted that the power of review is only available in cases when an error is evident from the record itself. To be clear, the review process is not an appeal. Re-evaluating all of the evidence or the judge's application or interpretation of the law would amount to the exercise of appellate jurisdiction, which is not permissible. The review must be limited to errors that are evident from the record.
30. Section 80 of the Civil Procedure Act Cap 21 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
31. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“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.”
32. I have considered the authorities cited by both Counsel as herein summarised and find them all to be relevant on the circumstances under which a court should exercise the power of review as provide under Section 80 of the Civil Procedure Act and Order 45 of the Rules as herein above reproduced.
33. While discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608, which observations of the Court I fully associate with, the Learned Judges had this to say:-
“the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule”
34. Having addressed my mind to the Application and submissions as well as the Case Law herein laid out, it is my considered opinion that this Application does fall within the ambit of a review properly so envisaged and not an Appeal. This is for the reason that by the court reaching a finding that because the Applicant’s profession was known, there was a laid out mechanism of determining the monthly wage payable the deceased even without evidence of his monthly earnings having been availed to court. The Court made a finding that the said mechanism was laid out in the Minimum Wage Regulations. This finding then goes to show that it was the intention of the court to determine the multiplicand using these Regulations.
35. The court then ought to have determined the applicable wage based on the fact of the deceased profession and date when the deceased died. The testimony that the deceased was a heavy commercial driver was not at all rebutted and or controverted. It is also not disputed that the accident occurred on 25th August 2018 and the deceased died on the same day. The applicable wage then ought to have been the one in force as at the time of the death of the deceased. I too have considered the minimum wage applicable as at the time of the deceased demise and it is indeed as submitted by Counsel for the Applicant. The act of the court applying the minimum wage applicable for the year 2015 is an error of law. In light of the stated intent of the court to use the applicable minimum wage, this error amounts to a mistake, an inadvertence on the part of the court to apply wage guidelines that had already been reviewed as at the time of the deceased demise. It is an error that is glaringly apparent on the face of the judgement and which therefore warrants a review the same having been brought to the attention of the court without any delay at all by the Applicant.
36. In this regard, I find that the Application for review is warranted in the circumstances and the Respondent’s submission that that this matter belongs to the ambit of the appellate process is without merit and the same is accordingly dismissed. In the circumstances the Application is allowed, the applicable multiplicand reviewed from Ks. 7,980/= and substituted with a multiplicand of Ks. 27,023.95/= which then now places the General damages in favour of the Applicant for Loss of Dependency calculated as
27, 023.95 x 12 x 2/3 x 30 at Ks. 6, 487, 908/=
37. The said General damages are now hereby amended accordingly. In light of the fact that the error was on the part of the court, I shall not award costs to any party and each is therefore to bear their own costs.
Read Dated and Signed at ELDORET on 2nd July 2025.
1) Spent.
2) That the Court be pleased to review and or vary the judgment delivered on 12/3/2025 specifically on the issue relating to the multiplicand.
3) That the judgment be reviewed and the multiplicand of Kshs. 7,980/= be substituted with a multiplicand of Kshs. 27,023.95/=
2. The application is supported by the Affidavit sworn by the Applicant, Flomena Tiriki Kimaiyo, on the same date.
3. The Applicant deposed that the Court delivered a judgment on 12/03/2025 where the Court in allowing the partial appeal altered the applied multiplicand from Kshs. 30,000/= to Kshs. 7,980/=, that while delivering the judgment the Court upheld the evidence and the fact that the deceased was a heavy commercial driver.
4. The Applicant further deposed that the accident occurred on 25th August 2018 as such the applicable Regulation is the one herein above stated. That while reviewing the multiplicand applied by the trial court, the learned judge observed that the applicable basic minimum wage to be applied was Kshs. 7,980/= per month as provided for in the Minimum Wage Regulation. That on perusing a downloaded copy of the Minimum Wage Regulation applicable by then being the Regulation of Wages (General) Amendment Order, 2018 that came in force on 1st of May 2018, the said Regulations and specifically item No.11 thereof which provides for the monthly wage of a driver of a heavy commercial vehicle, the wage within the municipalities is set at Kshs. 27,023.95/=.
5. The Applicant therefore submits that there is an error or mistake apparent on the record by the Court pegging the minimum monthly wage to be Kshs. 7,980/- which constitutes a mistake, inadvertence and or an error apparent on the record. The Applicant is aggrieved by the said inadvertence, error and or mistake and urges that the Court reviews its judgment and corrects the error or mistake.
Replying Affidavit
6. The Application is opposed by the Respondent. The Respondent filed a Replying Affidavit dated 24/03/2025.
7. The Respondent deposed that the application lacks merits, is misconceived and is an abuse of Court process. The Respondent contends that the application does meet the requirements of Order 45 of the Civil Procedure Rules for reason that there is no discovery of a new and important matter on evidence, there is no mistake or error apparent on the face of the record and there is no sufficient reason for review.
8. The Respondent further deposed that the issue of the multiplicand goes to the root of the judgment and is not is for a matter for review but for appeal. The Applicant contended that the Applicant in the instant application is trying to ask the Court to sit on appeal on its own judgment when it already functus officio and thus the application is fatally defective and an abuse of the Court process and should therefore be dismissed with costs.
9. The Applicant also filed a Supplementary Affidavit dated 1/4/2025, annexing a copy of the decree herein.
Submissions
10. The Application was canvassed vide written submissions. Both parties filed their respective submissions.
The Applicant’s Submissions
11. Counsel for the Applicant began by giving a brief summary of the contents of the Applicant’s Affidavit herein already captured. He submitted that from a perusal of the judgment delivered by this Court, the Court relied on the 2015 Minimum Wage Regulations and yet the regulations that were in force were the 2018 Minimum Wage Regulations and which copy of regulations were in fact on the record of appeal.
12. In regard to the issue of review, Counsel cited Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
13. Counsel cited the Supreme Court of Uganda In Edison Kanyabwera versus Pastori Tumwebaze (2005) UGSC 1, where the Court provided for what constitutes an error apparent on the face of the record, it stated as follows;
"it is stated that in order that an error maybe a ground for review, it must be one apparent on the face of the record, an evident error which does not require any extraneous matter to show its incorrectness. It must be an error so manifest and clear that no court would permit such an error to remain on the record. The error maybe one of fact, but it is not limited to matters of fact, and includes also an error of law."
14. Counsel cited the Court of Appeal in National Bank of Kenya Limited versus Ndungu Njau (1997) eKLR stated as follows;
"A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established."
15. Counsel also cited the Court of Appeal in the case of Muyodi v Industrial and Commercial Development Corporation & Anor [2006]1 EA 243 and also placed reliance on the case of Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR it was held: -
"Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting It to the following grounds; (a) discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the Applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay."
16. Counsel urged that the oversight and or error is self-evident error which does not require any extraneous matter to show its incorrectness. Counsel maintained that it is an error so manifest and clear that no court would permit such an error to remain on the record and further submitted that the application was brought on 13/3/2025 barely a day after delivery of judgement and thus was brought without undue delay.
17. In conclusion, Counsel urged the Court to allow the application by reviewing the judgement in so far as the multiplicand is concerned and thus order that the multiplicand shall be Kshs. 27,023/=.
Respondent’s Submissions
18. Counsel for the Respondent also reiterated that Section 80 of the Civil Procedure Act gives the power of review while Order 45 of the Civil Procedure Rules sets out the rules. Counsel observed that the rules restrict the grounds for review and reiterated those grounds deposed in their Replying Affidavit as already captured herein.
19. Counsel further submitted that in the instant application, the Applicant sought orders that the court reviews its judgement on the basis that there is a mistake or an error apparent on the face of the record in terms of the multiplicand used to calculate loss of dependency.
20. Counsel maintained that the error contemplated by Order 45 of the Civil Procedure Rules is self-evident and detectable and therefore does not require long debate and process of reasoning. An order or decision cannot be corrected merely because it is erroneous in law or on the ground that a different view could have been taken by the court on a point of fact or law. Counsel cited the case of National Bank of Kenya Limited versus Ndungu Njau (1997) eKLR (supra).
21. Counsel further observed that the Court of Appeal in the case of Rose Kaiza Vs Angelo Mpanju Kaiza 2009, the Court was categorical that;
"An application for review under order 44 Rules 1 of the Civil Procedure Rules must be clear and specific on the basis upon which it is made.
22. In determining that the Applicants' application fails to meet the threshold for review, Counsel implored to this Honourable Court to be guided by the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR where the Honourable Court in dismissing an application for review cited the case of Nyamogo & Nyamogo v Kogo where the court rendered itself as follows:
"An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal."
23. Counsel urged that the error the Applicant alleges the court made on the issue of the multiplicand goes to the root of the case. Counsel contended that the Applicant's assertion that the Learned judge made an error by applying a multiplicand of Kshs.7,966.80 as per The Regulation of Wages (Agricultural Industry) Amendment Order 2015 and that the court ought to have adopted The Regulation of Wages (General) Amendment Order 2018 which provides for a multiplicand Kshs.27,023.93 is not an error apparent on the record and as such, these assertions by the Applicant/Respondent ought to be dismissed as it pertains the substantive issues that are in contention in the suit and for the court to adopt the latter regulation, it will require the court to re analyse and make a long drawn process of reasoning on the point such that court would draw a different opinion as it will have to make a consideration as to which sector the deceased worked in during his lifetime.
24. Counsel further submitted that the court would need to evaluate the evidence on record to ascertain whether the required threshold in proving the net annual wage that was payable to the deceased. Thus, Counsel submitted that the ground of error or mistake is not sustainable in the instant application.
25. Counsel contended that the ground that the Applicant is relying on in her application is one for appeal and the court cannot grant this order as a review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error, where without any elaborate argument one could point to the error and say here is a substantial point of law which stares one in the face and there could reasonably be no two opinions entertained about it.
26. Counsel further contended that the Applicants' application does not meet the criteria set forth as there is no error apparent on the record as alleged by the Applicant who has attached to her affidavit the Regulation of Wages (General) Amendment Order 2018 which was a totally different regulation for minimum wage governing the sector that the deceased worked in and was adopted by the court in coming up with its decision and which regulation was still in force at the time of death of the deceased.
27. Counsel urged that in the event that the Applicant feels aggrieved by the said decision, she ought to prefer an appeal and not an application for review as the points the Applicant raised in her application are grounds for an appeal rather than a review since this suit was heard, determined and judgement rendered and the Applicant appears to be inviting the court to sit an appeal on its own decision. Counsel submitted that in any case, while exercising the power of review, the court concerned cannot sit in appeal over its judgment/decision and therefore, this court has fulfilled its duties and has no further authority over this matter as the court is now functus officio.
28. In conclusion, Counsel submitted that the Applicant has failed to meet the threshold set for review of judgement as there is not mistake or error apparent on the face of the record and as such pray that the court dismisses the Applicant's application with cost to the Respondent.
Determination
29. It should be noted that the power of review is only available in cases when an error is evident from the record itself. To be clear, the review process is not an appeal. Re-evaluating all of the evidence or the judge's application or interpretation of the law would amount to the exercise of appellate jurisdiction, which is not permissible. The review must be limited to errors that are evident from the record.
30. Section 80 of the Civil Procedure Act Cap 21 provides as follows: -
“Any person who considers himself aggrieved—
a. by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or
b. by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.”
31. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides as follows: -
“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.”
32. I have considered the authorities cited by both Counsel as herein summarised and find them all to be relevant on the circumstances under which a court should exercise the power of review as provide under Section 80 of the Civil Procedure Act and Order 45 of the Rules as herein above reproduced.
33. While discussing the scope of review, the Supreme Court of India in the case of Ajit Kumar Rath vs State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608, which observations of the Court I fully associate with, the Learned Judges had this to say:-
“the power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” ............... means a reason sufficiently analogous to those specified in the rule”
34. Having addressed my mind to the Application and submissions as well as the Case Law herein laid out, it is my considered opinion that this Application does fall within the ambit of a review properly so envisaged and not an Appeal. This is for the reason that by the court reaching a finding that because the Applicant’s profession was known, there was a laid out mechanism of determining the monthly wage payable the deceased even without evidence of his monthly earnings having been availed to court. The Court made a finding that the said mechanism was laid out in the Minimum Wage Regulations. This finding then goes to show that it was the intention of the court to determine the multiplicand using these Regulations.
35. The court then ought to have determined the applicable wage based on the fact of the deceased profession and date when the deceased died. The testimony that the deceased was a heavy commercial driver was not at all rebutted and or controverted. It is also not disputed that the accident occurred on 25th August 2018 and the deceased died on the same day. The applicable wage then ought to have been the one in force as at the time of the death of the deceased. I too have considered the minimum wage applicable as at the time of the deceased demise and it is indeed as submitted by Counsel for the Applicant. The act of the court applying the minimum wage applicable for the year 2015 is an error of law. In light of the stated intent of the court to use the applicable minimum wage, this error amounts to a mistake, an inadvertence on the part of the court to apply wage guidelines that had already been reviewed as at the time of the deceased demise. It is an error that is glaringly apparent on the face of the judgement and which therefore warrants a review the same having been brought to the attention of the court without any delay at all by the Applicant.
36. In this regard, I find that the Application for review is warranted in the circumstances and the Respondent’s submission that that this matter belongs to the ambit of the appellate process is without merit and the same is accordingly dismissed. In the circumstances the Application is allowed, the applicable multiplicand reviewed from Ks. 7,980/= and substituted with a multiplicand of Ks. 27,023.95/= which then now places the General damages in favour of the Applicant for Loss of Dependency calculated as
27, 023.95 x 12 x 2/3 x 30 at Ks. 6, 487, 908/=
37. The said General damages are now hereby amended accordingly. In light of the fact that the error was on the part of the court, I shall not award costs to any party and each is therefore to bear their own costs.
Read Dated and Signed at ELDORET on 2nd July 2025.