INTRODUCTION
1. The applicant seeks the review of judgment dated 29 May 2025.
2. The main ground of the application is that there is a clear mistake and error apparent on the face of this Honourable Court's record, warranting the decision of the Court to be revisited.
APPLICANT’S CASE
3. The Applicant invites the Court to find that there are two main errors on the face of the record that warrant that the Judgment be revisited. The errors are said to be the following;-
A. One of the errors was that a Consent Order in respect to the Appellant's Notice of Motion Application dated 2nd January, 2024, was adopted by the Court admitting the Appellants Defence and Counterclaim filed in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liguidation) vs. Interspar Limited as properly filed and made into an order or decree .
The consent order, once approved by the court and made into an order or decree, established an estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised.
4. The appellant argued that the Court judgment, while it dismissed the appeal, it had already earlier recorded a final order at an interim stage, which it failed to address and which would have the effect of returning the parties to the trial court, no matter the outcome of the appeal, since it was by consent.
5. According to the applicant all the while, the rules of final adjudication require that the court, when hearing the appeal matter, would either have to adopt that part of the final Consent orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination.
6. The applicant submitted that the Court did not do that, committing an error that is apparent on the record. By not expressly taking any of the options, the original binding effect of the Consent Order remained and remains to date.
7. The applicant cited the case of Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222 where the Court of Appeal confirmed that an agreement reached at the interim stage and acted upon by the parties constituted a binding contract, especially where its terms were accepted by conduct and not subsequently rejected or superseded. The court further held that such interim agreements are enforceable, and their binding force persists unless explicitly set aside or replaced by final terms.
B. The other error was that the Court dismissed the Appeal singularly on the clearly admitted basis of a mistake of an Advocate, thereby unfairly prejudicing an innocent party.
8. The appellant submitted that it shall demonstrate that the application has met the threshold for review, and it should be granted.
9. According to the applicant based on these two major errors, the applicant pleads with this Court to agree with the Appellant's application for review of the judgment and dismiss the Respondent's responses, which allude to alleged assumption of technicality, misleading statement on the impact of the consent order, and contradictions as to the existence of the Court order.
10. The applicant set out the factual background of the case as follows;-
i). The Appellant filed the Trial case in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liquidation) vs. Interspar Limited. In this case, the Appellant made an application for extension of time for its Defence and Counterclaim to be deemed as duly filed.
ii). The Hon. CK. Cheptoo (“Trial Court”) dismissed Appellant's Notice of Motion Application dated 1st November, 2023 in NAIROBI MCCC NO E3638 OF 2022 –ARM Cement PLC (in Liquidation) vs. Interspar Limited. The Court refused to entertain an application by the Appellant based on a finding that a 2-day delay in filing was inordinate and that the Appellant was an indolent litigant.
ii). Trial Court's ruling necessitated an appeal, which the Appellant instituted before this Honourable Court vide a Memorandum of Appeal. The Appeal to this Court 16. The Appellant challenged the ruling in the Court vide a Memorandum of Appeal dated 29" December 2023. The appeal was precipitated by the fact that:
a. On 29% September 2023, the Trial Court granted the Appellant 14 days to file its Defence on condition that it pays throw away costs of KShs. 20,000.
b. The Appellant promptly paid the throw-away costs to the Respondent and thereafter prepared their Defense.
c. A Defence and Counterclaim dated 5th June 2023 in response to the main suitin MCCC No. E3638 of 2022, filed the said pleadings on 15th October 2023 (a Sunday), and served the Respondent on 16th October 2024.
d. At the time of filing the said pleadings, the Appellant's Advocate genuinely believed that they were within the 14 days, and that they had until 16t October, 2023 to file, having excluded a public holiday (10 October, 2023) and the last day being a weekend (Saturday 14 October, 2023) from their computation of time. Consent order arising from Appellant's Application dated 2d January, 2024
e). Together with the main appeal, the Appellant filed an interlocutory application vide a Notice of Motion Application dated 2nd January, 2024. At this stage, a key development occurred on 18th April 2024. On this day, the Appellant's Notice of Motion Application dated 21 January, 2024 came up for hearing before the Honourable Court, Lady Justice C. Meoli. On the same day, the parties, through their Advocates, Counsel Mr Shikanda for the Appellant and Counsel Ms Mabango for the Respondent, agreed to compromise and allow the said Application.
f). By consent, the Honourable Court, Lady Justice C. Meoli allowed the Appellant's Notice of Motion Application dated 2 January, 2024, in the following terms:
1. THAT Motion dated 2d January, 2024, is allowed to wit:
I. This Honourable Court be pleased to issue an Order for preservation of the status quo pending the outcome of the Appeal.
II. Il. There be a stay of proceedings and execution of the ex-parte Default Judgment entered in Nairobi MCCC No. E3638 of 2023 on 28" April, 2023, pending hearing and determination of the Appeal.
III. The Defence and Counter-claim dated 5" June, 2023 and filed on 15th October, 2023, in MCCC No. E3638 of 2022 be deemed properly filed.
IV. The cost of this Application will be in the cause. Subject to the Applicant depositing Kshs. 400,000/- into a joint interest- earning account within 30 days.
V. 2. THAT costs in the cause.
g). THAT as the Record of Appeal filed, the Appeal be perfected for service within the week.
h). THAT Mention before the Deputy Registrar on 21st May, 2024.
Judgment
11. The fact that the Appellant deposited the security of Kshs. 400,000 into a joint interest earning account within the 30-days’ time period stipulated by this Honourable Court has not been disputed by the Respondent and so the said Consent Court Orders, which are final in nature with respect to the Appellant's Defense and Counterclaim as filed in the Trial Court, have remained valid at all times material.
12. This instant application was filed after the judgment on appeal was rendered. It was brought without any unreasonable delay. All it asks the court is to review its judgment. The main ground of the application is that there is a clear mistake and an error apparent on the face of this Honourable Court's record, warranting the decision of the Court to be revisited.
13. The Appellant filed the application, including the following documents.
a) Certificate or urgency dated 29 May 2025
b) Notice of motion dated 29th May 2025
c) Supporting Affidavit of Tanveer Sodi sworn on 29 May 2025.
d) Further Affidavit of Tanveer Sodi sworn on 221 September 2025.
14. In response, the Respondent has filed:
a) Replying Affidavit sworn by Elliam Kweya on 8 August 2025.
15. The applicant set out the following issues for determination;-
ISSUES FOR DETERMINATION
16. The submissions address the following issues:
i. Whether this Court has jurisdiction to entertain the review application?
ii. Whether the application has met the threshold for review?
iii. What is the impact of the Consent Order granted in the Notice of Motion Application dated 2nd January, 2024?
iv. Whether the Court should grant the orders sought?
17. On Jurisdiction the applicant submitted that the application is predicated on the claim that there is a clear mistake and error apparent on the face of this Honourable Court's record, warranting the decision to be revisited.
18. The applicant relied on Section 80, Civil Procedure Act Cap 21 which states: “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.”
19. 0rder 45 Rule 1, Civil Procedure Rules, 2010 provides
"(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 allowed, and who from the discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at the time the decree was passed or 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 without unreasonable delay.
20. The applicant asserted that this is not turning an appeal disguised as a review. Further, that he is not trying to deny any party the fruits of the judgment. All the applicant seeks is what is allowable under these sets of laws applicable to the proceedings herein, particularly on the ground that there is an error apparent on the face of the record.
21. In National Bank of Kenya Limited v Ndungu Njau KLR 469 , the Court established that: “An Application for review must show an error apparent on the face of the record or new evidence to justify reopening the case.”
22. The applicant maintains that they have been able to demonstrate this.
23. On whether the application has met the threshold for review, the applicant submitted that the review application was filed without inordinate delay. He cited the case of Republic v Public Procurement Administrative Review Board & 2 others eKLR where the Court reiterated the requirement for prompt application without unreasonable delay. There is no doubt that the instant application was filed without unreasonable delay.
24. The Court dismissed the Appeal and further order for execution of the lower Court's decision to proceed whilst there is a Consent Order issued on 8 July, 2023.
25. According to the applicant the error pointed out by the applicant is apparent from the record as is envisaged in Order 45 Rule 1, Civil Procedure Rules, 2010.
26. The applicant further submitted that one of the errors was that a Consent Order in respect to the Appellant's Notice of Motion Application dated 2d January, 2024, was adopted by the Court admitting the Appellant's Defence and Counterclaim filed in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liquidation) vs. Interspar Limited as properly filed and made into an order or decree. The consent order, once approved by the court and made into an order or decree, established an estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised.
a. The Applicant has submitted the ideal position, which is that the final adjudication requires that the court, when hearing the appeal matter, to either adopt that part of the final Consent orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination. The applicant argues that this Court did not do that, committing an error that is apparent on the record.
b. He added that the Court did not state the fate of the consent order. Its judgment did not guide what happened with the counterclaim. By not expressly taking any of the options, the original binding effect of the Consent Order remained and remains to date. In Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222, the Court of Appeal confirmed that an agreement reached at the interim stage and acted upon by the parties constituted a binding contract, especially where its terms were accepted by conduct and not subsequently rejected or superseded. The court further held that such interim agreements are enforceable, and their binding force persists unless explicitly set aside or replaced by final terms.
27. The applicant maintains that as long as the consent order stands the error alluded to by the applicant remains apparent thus this court should intervene by way of review.
28. The applicant asserted that it is clear that the Respondent has attempted to deny that such an order exists. According to the applicant the Respondent's denial is without basis as it is contrary to what is apparent on the face of the record of this Honourable Court.
29. Furthermore, the claim that no such order exists is an afterthought. The Respondent knew the consent order, as they were copied in the Appellant's communication to the consolidated bank forwarding the order.
30. The applicant stated verbatim the scope of the compromised application and the consent order adopted by the court. However according to the applicant the Respondent has attempted to claim that the Consent order was limited in scope, even suggesting that it was only addressed to the issue of stay which is not correct since the parties compromised the entire application and that one of the prayers sought in the interlocutory application on appeal was with respect of the Deeming of the Defense and Counterclaim in MCCC E3638 of 2022 as duly filed. The consent therefore extended to that order.
31. Indeed, it is not true as the Respondent has alleged that the consent was limited to a stay of execution.
32. The applicant urged this court to treat as an afterthought the suggestion by the applicant that the consent order was limited in scope. The truth is that following the extraction of the Court order on 8th July, 2024, the Appellant wrote to the Consolidated Bank forwarding the order containing the terms of ‘deeming the defense and counterclaim as filed.
33. The Respondent was copied in the communication and has not objected to the claim to date.
34. The applicant went further to submit that the Second Error related to finding on the Mistake of the Advocate.
35. The judgment has an apparent mistake on the application of rules of justice as enshrined under Articles 48 and 50 of the Constitution of Kenya, 2010, entitle every litigant to a fair hearing and access to justice as a bare minimum, which rights have been curtailed on account of the errors and mistakes identified on the face of this Honourable Court's Judgment.
36. The record of the Court judgment shows a clear mistake in the Honourable Court's failure to consider the long-standing principle of law that the error of an Advocate ought not be visited upon a litigant, as adopted in Co-operative Insurance Company Limited v Charles Mworia M’Aranja & Jane Kambura (High Court of Kenya at Machakos Civil Appeal No. 53 of 201 6). In this case, it was held that the mistake or error of an advocate or legal representative should not ordinarily be visited upon the litigant, especially where it causes a bona fide and excusable procedural delay.
37. There is a glaring error on the face of the record as the Honourable Court has condemned the Appellant as an indolent litigant despite the Appellant promptly abiding by the Orders issued by the Trial Court in paying the awarded throw-away costs within the timelines stipulated by the Court.
38. Therefore, if the Judgment of this Honourable Court continues to stand as-is, the Respondent will not only endure the loss of their assets and source of livelihood, but they will also be condemned unheard, having been unfairly removed from the seat of justice without being afforded a hearing in their Defense.
39. The applicant maintains the he has laid out a solid acse for review of the judgment on the basis of the errors pointed out which he asserts meet the test set out in, in Mberia v Mbui (Civil Appeal 102 of 2020) KECA 954 where the court held: “The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review if detection of the error requires detailed scrutiny or debate.’’
40. The applicant submitted that if the orders sought are not granted the applicant would be at the risk of losing Ksh 400,000, the total of KShs. 7,049,439.87 is both colossal and unproven, given the financial challenges of the Respondent, particularly during the transition from administration to liquidation in 2018 and 2021.
41. The applicant maintains that the respondent has no ability to repay the amount.
42. The correct legal position is that when a party pleads inability of the respondent to pay back the decretal sum, the evidential burden is on the respondent to prove such ability. The applicant's allegation of inability suffices absent rebuttal by the respondent. This aligns with the finding made in Bonface Kariuki Wahome v Peter Nziki Nyamai & Another eKLR. In this case, it was held that the burden is on the respondent (debtor) to prove the ability to repay the decretal sum if the decree is set aside and execution stayed. The applicant needs only to allege inability to repay or demonstrate potential irreparable loss, while it is the respondent who must show financial capability to refund the sum eventually.
43. The fact that there is a default judgment at the Trial Court, and for which the judgment in NAIROBI HCCA E007 OF 2024 has cleared the way for the Respondent to execute the applicants apprehension is that the execution is imminent, considering the Respondent's written requests of 2nd June 2023 (Exhibit marked “TS-7") and another one dated 26th May, 2025 (produced as Exhibit marked “TS-8"), addressed to Consolidated Bank of Kenya, Koinange Street Branch, where a further security deposit of Kshs. 400,000 is held and calling for its immediate release in part settlement of the default judgment entered in the lower/ Trial Court.
44. The applicant posed the question, what is the impact of the consent order granted in notice of motion application dated 2 nd january, 2024? Impact of the Consent as a binding estoppel - Issue estoppel.
45. The Applicant averred that the consent order can be determinative. Contrary to what the Respondent alleged at paragraph 6 of the Replying Affidavit, the correct position of the law is that a final order is issued at an interim stage, especially by consent in the manner in which it was granted, and that order becomes a binding contract.
46. In support of the argument the applicant relied on the case of Byram Pestonii Gariwala v. Union Bank of India & Ors. (1992) 1 SCC 31; State of Orissa AIR 1956 SC 346, the Supreme Court decided, in December 2024, that a consent order, being the record and approval of a mutual settlement between parties, gives rise to estoppel by judgment (issue estoppel) concerning the issues expressly addressed by the order. The Court noted that parties are generally precluded from disputing those matters in subsequent proceedings, except where the order is set aside due to fraud, misrepresentation, or mistake.
47. The applicant further submitted estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised. Given this impact, the rules of final adjudication require that the final judgment the court would either have to adopt that part of the final orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination, which this appellate court did not do. The impact of not doing so is twofold: a. One, the consent order cannot be casually dismissed as a technicality (as the Respondent suggests at paragraph 10 (g) and (h) of the Respondent's Replying Affidavit) since it is a binding contract, the effect of which is final upon the parties, unless the final determination expressly sets it aside. b. Two: if it is not expressly set aside in a final determination, the original binding effect of the consent remains. This is the position in Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222, where the Court of Appeal confirmed that interim agreements are contractually enforceable and their binding force persists unless explicitly set aside or replaced by final terms.
48. The applicant has further contended that Respondent's claim of a general rule that an interim consent order cannot override a final judgment is both untrue and wholly misleading in the circumstances of the instant case and in light of the decision in Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd. This Court should not accept it. Impact of the Consent as a binding estoppel — Promissory estoppel.
49. Furthermore, and besides the issue of estoppel the respondent is estopped from claiming that the consent order was not determinative as:
a. The Respondent has long been aware of the determinative nature of the consent. Prayer 7 of the Appellant's application dated 2 January 2024, contained at page 13 of the Respondent's reply, which has been replicated in the Memorandum of Appeal, did in fact invite the court to tamper with the decision of the trial court in MCCC No. 3638 of 2022. The Respondent was well aware of this application all along.
b. Respondent's advocates have not denied having instructions in the matter when the matter was compromised or made any allegation of misrepresentation or fraud. As such, there is no reason, be it fraud or misrepresentation, to vitiate the consent order.
c. Respondent is further estopped because it was on the reliance of that compromise made, which the Appellant, after the Court granted the order, proceeded to make the payment for security for costs. In Central London Property Trust Ltd v High Trees House Ltd, KB 130 , where a party, having received a formal order, does not timely object to its existence or effect and instead remains silent, equity may intervene to prevent that party from later denying the order by applying the doctrine of promissory estoppel. The courts have recognized that silence or acquiescence in such circumstances can amount to an implied representation or promise that the party accepts the existence of the order, and it would be unconscionable to allow the Respondent to dispute it later, especially if the Appellant has acted in reliance on that position. As articulated in Lacy v. Wozencraft, 188 Okl. 19, 105 P.2d 781 , and echoed in STRAHM v. BOARD OF TRUSTEES (1950), promissory estoppel can arise from silence when a person fails to speak out on receipt of an order, knowing that others are relying on their lack of objection.
50. The applicant asserted that if the Judgment of this Honourable Court continues to stand as-is, the Respondent will not only endure the loss of their assets and source of livelihood, but they will also be condemned unheard, having been unfairly removed from the seat of justice without being afforded a hearing in their Defense.
51. The applicant thus urged this court to allow the review application.
52. By an Order of this Honourable Court, the Defense and Counter-claim dated 5th June, 2023 was admitted into the Trial Court's record. The rules of justice, therefore, dictated that the Defense having been accepted into the Court's record, the Appeal be allowed to pave the way and will enable the suit that was before the Trial Court to proceed on its merits.
53. This Honourable Court reviews, discharges, varies, and/or sets aside the Judgment delivered by this court on 15" May, 2025 and to substitute the same with a decision allowing the Appeal.
54. The Honourable Court be pleased to direct that the dispute between the parties be referred back to the Trial Court for hearing on priority basis.
55. The Honourable Court grants such other orders and directions as may appear to this Honourable Court just and convenient to grant under the circumstances.
RESPONDENT'S CASE
56. The Application seeks a review of the Judgment by this Honourable Court dismissing the Applicant's Appeal with no costs.
57. By a Plaint dated 14th July 2022, the Respondent herein instituted a claim against the Appellant seeking relief for the sum of Kshs. 7,049,439.87/= being the outstanding debt owing to the Respondent together with interest and costs of the suit.
58. The Summons to Enter Appearance were served alongside the Plaint and other accompanying documents on the Defendant on 26th July 2022. The Respondent was required to enter an appearance within 15 days from the date of service.
59. The Respondent, however, entered an appearance on 15th August 2022 and the Appellant received the Memorandum of Appearance "Under Protest" on account of the same being filed out of time.
60. In the meantime, the parties continued to engage in further negotiations through correspondence in a bid to reach a settlement, however, the Appellant's claim that out-of-court negotiations were commenced on 24th August 2022 is an attempt to mislead the Court. The Respondent has been keen on having the matter settled and as such they continued to engage the Respondent in settlement talks even after commencement of the suit.
61. Noting that the engagements that continued after the commencement of the suit were futile and that the Appellant had not filed its Defence or any further pleadings in the matter, the Respondent proceeded to file a Request for Judgment dated 9th February 2023 on an even date.
62. It is instructive to note that any negotiations between parties do not halt the parties's statutory obligations. Therefore, the Appellant had an obligation to comply with the timelines provided in the Civil Procedure Act and Civil Procedure Rules.
63. The Request for Judgment was endorsed by the Learned Magistrate on 28th April 2023and the Respondent subsequently prepared and served the Appellant with a draft decree on 2nd June 2023 for their review and/or approval with or without amendments.
64. The Appellant consequently filed an Application dated 5th June 2023 seeking inter alia a stay of execution of the ex-parte Judgment delivered on 28th April 2023, the Decrees and any consequential Orders and proceedings arising therefrom.
65. The Trial Court on 29th September 2023 delivered its Ruling on the Appellant's Application dated 5th June 2023 allowing the Application in the following terms:
a) THAT the Defendant pays throw-away costs of Kshs. 20,000 to the Plaintiff within 14 days from the date hereof;
b) THAT the Defendant is ordered to file and serve the Defence within 14 days from the date hereof.
c) THAT failure to comply with Orders No. 1 and 2 above, the orders setting aside Judgment will lapse automatically.
66. The 14 days ordered by the Court lapsed on 13th October 2023 and the Defendant filed and served its Defence and Counterclaim on 16th October 2023. The Appellant alleges that they filed the Defence and Counterclaim on 15th October 2023 but the date confirmed from the judiciary portal as to when theyfiled the Defence and Counterclaim is 16th October 2023. The delay by the Appellant was 3 days and not 2 as pleaded in the submissions.
67. According to the respondent when the matter came up for Mention on 1st November 2023 for purposes of confirming the Defendant's compliance, the Respondent's Advocate pointed out the Appellant's non-compliance and sought leave to execute on account of such non-compliance.
68. The Appellant's Advocate acknowledged that they had indeed filed the Appellant's Defence and Counterclaim outside the 14 days granted by the Court and sought the Court's indulgence. It was the Respondent's position that the Orders issued by the Court were self-executing and the Court lacked the requisite jurisdiction to grant any leave as it was functus officio.
69. Upon hearing both Advocate's oral Submissions, the Learned Magistrate declined to set aside the Orders of 29th September 2023 and subsequently granted the Respondent liberty to execute.
70. The Appellant then proceeded to file a Notice of Motion Application1 dated 1st November 2023 to stay the ex-parte judgment and be granted leave to file its defence for the second time. The said application was dismissed by the court on 18th December 2023for lack of merit.
71. The Appellant challenged the Trial Court's Ruling of 18th December 2023 vide a Memorandum of Appeal dated 29th September 2023.
72. The Appeal was canvassed by way of Submissions and by a Judgment delivered on 14th May 2025, this Honourable Court dismissed the Appeal with no costs. The respondent set out the facts in the submissions and identified the following issues for determination.
a) Whether the Application is merited to warrant grant of orders of review.
b) What was the effect of the consent order arising from the Application dated 2nd January 2024.
c) Who should bear the costs of the Application .
73. On whether the application is merited to warrant grant of orders of review the respondent argued that this Honourable Court is vested with the power of review but the power must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
74. The res
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1. The applicant seeks the review of judgment dated 29 May 2025.
2. The main ground of the application is that there is a clear mistake and error apparent on the face of this Honourable Court's record, warranting the decision of the Court to be revisited.
APPLICANT’S CASE
3. The Applicant invites the Court to find that there are two main errors on the face of the record that warrant that the Judgment be revisited. The errors are said to be the following;-
A. One of the errors was that a Consent Order in respect to the Appellant's Notice of Motion Application dated 2nd January, 2024, was adopted by the Court admitting the Appellants Defence and Counterclaim filed in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liguidation) vs. Interspar Limited as properly filed and made into an order or decree .
The consent order, once approved by the court and made into an order or decree, established an estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised.
4. The appellant argued that the Court judgment, while it dismissed the appeal, it had already earlier recorded a final order at an interim stage, which it failed to address and which would have the effect of returning the parties to the trial court, no matter the outcome of the appeal, since it was by consent.
5. According to the applicant all the while, the rules of final adjudication require that the court, when hearing the appeal matter, would either have to adopt that part of the final Consent orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination.
6. The applicant submitted that the Court did not do that, committing an error that is apparent on the record. By not expressly taking any of the options, the original binding effect of the Consent Order remained and remains to date.
7. The applicant cited the case of Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222 where the Court of Appeal confirmed that an agreement reached at the interim stage and acted upon by the parties constituted a binding contract, especially where its terms were accepted by conduct and not subsequently rejected or superseded. The court further held that such interim agreements are enforceable, and their binding force persists unless explicitly set aside or replaced by final terms.
B. The other error was that the Court dismissed the Appeal singularly on the clearly admitted basis of a mistake of an Advocate, thereby unfairly prejudicing an innocent party.
8. The appellant submitted that it shall demonstrate that the application has met the threshold for review, and it should be granted.
9. According to the applicant based on these two major errors, the applicant pleads with this Court to agree with the Appellant's application for review of the judgment and dismiss the Respondent's responses, which allude to alleged assumption of technicality, misleading statement on the impact of the consent order, and contradictions as to the existence of the Court order.
10. The applicant set out the factual background of the case as follows;-
i). The Appellant filed the Trial case in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liquidation) vs. Interspar Limited. In this case, the Appellant made an application for extension of time for its Defence and Counterclaim to be deemed as duly filed.
ii). The Hon. CK. Cheptoo (“Trial Court”) dismissed Appellant's Notice of Motion Application dated 1st November, 2023 in NAIROBI MCCC NO E3638 OF 2022 –ARM Cement PLC (in Liquidation) vs. Interspar Limited. The Court refused to entertain an application by the Appellant based on a finding that a 2-day delay in filing was inordinate and that the Appellant was an indolent litigant.
ii). Trial Court's ruling necessitated an appeal, which the Appellant instituted before this Honourable Court vide a Memorandum of Appeal. The Appeal to this Court 16. The Appellant challenged the ruling in the Court vide a Memorandum of Appeal dated 29" December 2023. The appeal was precipitated by the fact that:
a. On 29% September 2023, the Trial Court granted the Appellant 14 days to file its Defence on condition that it pays throw away costs of KShs. 20,000.
b. The Appellant promptly paid the throw-away costs to the Respondent and thereafter prepared their Defense.
c. A Defence and Counterclaim dated 5th June 2023 in response to the main suitin MCCC No. E3638 of 2022, filed the said pleadings on 15th October 2023 (a Sunday), and served the Respondent on 16th October 2024.
d. At the time of filing the said pleadings, the Appellant's Advocate genuinely believed that they were within the 14 days, and that they had until 16t October, 2023 to file, having excluded a public holiday (10 October, 2023) and the last day being a weekend (Saturday 14 October, 2023) from their computation of time. Consent order arising from Appellant's Application dated 2d January, 2024
e). Together with the main appeal, the Appellant filed an interlocutory application vide a Notice of Motion Application dated 2nd January, 2024. At this stage, a key development occurred on 18th April 2024. On this day, the Appellant's Notice of Motion Application dated 21 January, 2024 came up for hearing before the Honourable Court, Lady Justice C. Meoli. On the same day, the parties, through their Advocates, Counsel Mr Shikanda for the Appellant and Counsel Ms Mabango for the Respondent, agreed to compromise and allow the said Application.
f). By consent, the Honourable Court, Lady Justice C. Meoli allowed the Appellant's Notice of Motion Application dated 2 January, 2024, in the following terms:
1. THAT Motion dated 2d January, 2024, is allowed to wit:
I. This Honourable Court be pleased to issue an Order for preservation of the status quo pending the outcome of the Appeal.
II. Il. There be a stay of proceedings and execution of the ex-parte Default Judgment entered in Nairobi MCCC No. E3638 of 2023 on 28" April, 2023, pending hearing and determination of the Appeal.
III. The Defence and Counter-claim dated 5" June, 2023 and filed on 15th October, 2023, in MCCC No. E3638 of 2022 be deemed properly filed.
IV. The cost of this Application will be in the cause. Subject to the Applicant depositing Kshs. 400,000/- into a joint interest- earning account within 30 days.
V. 2. THAT costs in the cause.
g). THAT as the Record of Appeal filed, the Appeal be perfected for service within the week.
h). THAT Mention before the Deputy Registrar on 21st May, 2024.
Judgment
11. The fact that the Appellant deposited the security of Kshs. 400,000 into a joint interest earning account within the 30-days’ time period stipulated by this Honourable Court has not been disputed by the Respondent and so the said Consent Court Orders, which are final in nature with respect to the Appellant's Defense and Counterclaim as filed in the Trial Court, have remained valid at all times material.
12. This instant application was filed after the judgment on appeal was rendered. It was brought without any unreasonable delay. All it asks the court is to review its judgment. The main ground of the application is that there is a clear mistake and an error apparent on the face of this Honourable Court's record, warranting the decision of the Court to be revisited.
13. The Appellant filed the application, including the following documents.
a) Certificate or urgency dated 29 May 2025
b) Notice of motion dated 29th May 2025
c) Supporting Affidavit of Tanveer Sodi sworn on 29 May 2025.
d) Further Affidavit of Tanveer Sodi sworn on 221 September 2025.
14. In response, the Respondent has filed:
a) Replying Affidavit sworn by Elliam Kweya on 8 August 2025.
15. The applicant set out the following issues for determination;-
ISSUES FOR DETERMINATION
16. The submissions address the following issues:
i. Whether this Court has jurisdiction to entertain the review application?
ii. Whether the application has met the threshold for review?
iii. What is the impact of the Consent Order granted in the Notice of Motion Application dated 2nd January, 2024?
iv. Whether the Court should grant the orders sought?
17. On Jurisdiction the applicant submitted that the application is predicated on the claim that there is a clear mistake and error apparent on the face of this Honourable Court's record, warranting the decision to be revisited.
18. The applicant relied on Section 80, Civil Procedure Act Cap 21 which states: “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.”
19. 0rder 45 Rule 1, Civil Procedure Rules, 2010 provides
"(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 allowed, and who from the discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at the time the decree was passed or 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 without unreasonable delay.
20. The applicant asserted that this is not turning an appeal disguised as a review. Further, that he is not trying to deny any party the fruits of the judgment. All the applicant seeks is what is allowable under these sets of laws applicable to the proceedings herein, particularly on the ground that there is an error apparent on the face of the record.
21. In National Bank of Kenya Limited v Ndungu Njau KLR 469 , the Court established that: “An Application for review must show an error apparent on the face of the record or new evidence to justify reopening the case.”
22. The applicant maintains that they have been able to demonstrate this.
23. On whether the application has met the threshold for review, the applicant submitted that the review application was filed without inordinate delay. He cited the case of Republic v Public Procurement Administrative Review Board & 2 others eKLR where the Court reiterated the requirement for prompt application without unreasonable delay. There is no doubt that the instant application was filed without unreasonable delay.
24. The Court dismissed the Appeal and further order for execution of the lower Court's decision to proceed whilst there is a Consent Order issued on 8 July, 2023.
25. According to the applicant the error pointed out by the applicant is apparent from the record as is envisaged in Order 45 Rule 1, Civil Procedure Rules, 2010.
26. The applicant further submitted that one of the errors was that a Consent Order in respect to the Appellant's Notice of Motion Application dated 2d January, 2024, was adopted by the Court admitting the Appellant's Defence and Counterclaim filed in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liquidation) vs. Interspar Limited as properly filed and made into an order or decree. The consent order, once approved by the court and made into an order or decree, established an estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised.
a. The Applicant has submitted the ideal position, which is that the final adjudication requires that the court, when hearing the appeal matter, to either adopt that part of the final Consent orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination. The applicant argues that this Court did not do that, committing an error that is apparent on the record.
b. He added that the Court did not state the fate of the consent order. Its judgment did not guide what happened with the counterclaim. By not expressly taking any of the options, the original binding effect of the Consent Order remained and remains to date. In Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222, the Court of Appeal confirmed that an agreement reached at the interim stage and acted upon by the parties constituted a binding contract, especially where its terms were accepted by conduct and not subsequently rejected or superseded. The court further held that such interim agreements are enforceable, and their binding force persists unless explicitly set aside or replaced by final terms.
27. The applicant maintains that as long as the consent order stands the error alluded to by the applicant remains apparent thus this court should intervene by way of review.
28. The applicant asserted that it is clear that the Respondent has attempted to deny that such an order exists. According to the applicant the Respondent's denial is without basis as it is contrary to what is apparent on the face of the record of this Honourable Court.
29. Furthermore, the claim that no such order exists is an afterthought. The Respondent knew the consent order, as they were copied in the Appellant's communication to the consolidated bank forwarding the order.
30. The applicant stated verbatim the scope of the compromised application and the consent order adopted by the court. However according to the applicant the Respondent has attempted to claim that the Consent order was limited in scope, even suggesting that it was only addressed to the issue of stay which is not correct since the parties compromised the entire application and that one of the prayers sought in the interlocutory application on appeal was with respect of the Deeming of the Defense and Counterclaim in MCCC E3638 of 2022 as duly filed. The consent therefore extended to that order.
31. Indeed, it is not true as the Respondent has alleged that the consent was limited to a stay of execution.
32. The applicant urged this court to treat as an afterthought the suggestion by the applicant that the consent order was limited in scope. The truth is that following the extraction of the Court order on 8th July, 2024, the Appellant wrote to the Consolidated Bank forwarding the order containing the terms of ‘deeming the defense and counterclaim as filed.
33. The Respondent was copied in the communication and has not objected to the claim to date.
34. The applicant went further to submit that the Second Error related to finding on the Mistake of the Advocate.
35. The judgment has an apparent mistake on the application of rules of justice as enshrined under Articles 48 and 50 of the Constitution of Kenya, 2010, entitle every litigant to a fair hearing and access to justice as a bare minimum, which rights have been curtailed on account of the errors and mistakes identified on the face of this Honourable Court's Judgment.
36. The record of the Court judgment shows a clear mistake in the Honourable Court's failure to consider the long-standing principle of law that the error of an Advocate ought not be visited upon a litigant, as adopted in Co-operative Insurance Company Limited v Charles Mworia M’Aranja & Jane Kambura (High Court of Kenya at Machakos Civil Appeal No. 53 of 201 6). In this case, it was held that the mistake or error of an advocate or legal representative should not ordinarily be visited upon the litigant, especially where it causes a bona fide and excusable procedural delay.
37. There is a glaring error on the face of the record as the Honourable Court has condemned the Appellant as an indolent litigant despite the Appellant promptly abiding by the Orders issued by the Trial Court in paying the awarded throw-away costs within the timelines stipulated by the Court.
38. Therefore, if the Judgment of this Honourable Court continues to stand as-is, the Respondent will not only endure the loss of their assets and source of livelihood, but they will also be condemned unheard, having been unfairly removed from the seat of justice without being afforded a hearing in their Defense.
39. The applicant maintains the he has laid out a solid acse for review of the judgment on the basis of the errors pointed out which he asserts meet the test set out in, in Mberia v Mbui (Civil Appeal 102 of 2020) KECA 954 where the court held: “The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review if detection of the error requires detailed scrutiny or debate.’’
40. The applicant submitted that if the orders sought are not granted the applicant would be at the risk of losing Ksh 400,000, the total of KShs. 7,049,439.87 is both colossal and unproven, given the financial challenges of the Respondent, particularly during the transition from administration to liquidation in 2018 and 2021.
41. The applicant maintains that the respondent has no ability to repay the amount.
42. The correct legal position is that when a party pleads inability of the respondent to pay back the decretal sum, the evidential burden is on the respondent to prove such ability. The applicant's allegation of inability suffices absent rebuttal by the respondent. This aligns with the finding made in Bonface Kariuki Wahome v Peter Nziki Nyamai & Another eKLR. In this case, it was held that the burden is on the respondent (debtor) to prove the ability to repay the decretal sum if the decree is set aside and execution stayed. The applicant needs only to allege inability to repay or demonstrate potential irreparable loss, while it is the respondent who must show financial capability to refund the sum eventually.
43. The fact that there is a default judgment at the Trial Court, and for which the judgment in NAIROBI HCCA E007 OF 2024 has cleared the way for the Respondent to execute the applicants apprehension is that the execution is imminent, considering the Respondent's written requests of 2nd June 2023 (Exhibit marked “TS-7") and another one dated 26th May, 2025 (produced as Exhibit marked “TS-8"), addressed to Consolidated Bank of Kenya, Koinange Street Branch, where a further security deposit of Kshs. 400,000 is held and calling for its immediate release in part settlement of the default judgment entered in the lower/ Trial Court.
44. The applicant posed the question, what is the impact of the consent order granted in notice of motion application dated 2 nd january, 2024? Impact of the Consent as a binding estoppel - Issue estoppel.
45. The Applicant averred that the consent order can be determinative. Contrary to what the Respondent alleged at paragraph 6 of the Replying Affidavit, the correct position of the law is that a final order is issued at an interim stage, especially by consent in the manner in which it was granted, and that order becomes a binding contract.
46. In support of the argument the applicant relied on the case of Byram Pestonii Gariwala v. Union Bank of India & Ors. (1992) 1 SCC 31; State of Orissa AIR 1956 SC 346, the Supreme Court decided, in December 2024, that a consent order, being the record and approval of a mutual settlement between parties, gives rise to estoppel by judgment (issue estoppel) concerning the issues expressly addressed by the order. The Court noted that parties are generally precluded from disputing those matters in subsequent proceedings, except where the order is set aside due to fraud, misrepresentation, or mistake.
47. The applicant further submitted estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised. Given this impact, the rules of final adjudication require that the final judgment the court would either have to adopt that part of the final orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination, which this appellate court did not do. The impact of not doing so is twofold: a. One, the consent order cannot be casually dismissed as a technicality (as the Respondent suggests at paragraph 10 (g) and (h) of the Respondent's Replying Affidavit) since it is a binding contract, the effect of which is final upon the parties, unless the final determination expressly sets it aside. b. Two: if it is not expressly set aside in a final determination, the original binding effect of the consent remains. This is the position in Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222, where the Court of Appeal confirmed that interim agreements are contractually enforceable and their binding force persists unless explicitly set aside or replaced by final terms.
48. The applicant has further contended that Respondent's claim of a general rule that an interim consent order cannot override a final judgment is both untrue and wholly misleading in the circumstances of the instant case and in light of the decision in Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd. This Court should not accept it. Impact of the Consent as a binding estoppel — Promissory estoppel.
49. Furthermore, and besides the issue of estoppel the respondent is estopped from claiming that the consent order was not determinative as:
a. The Respondent has long been aware of the determinative nature of the consent. Prayer 7 of the Appellant's application dated 2 January 2024, contained at page 13 of the Respondent's reply, which has been replicated in the Memorandum of Appeal, did in fact invite the court to tamper with the decision of the trial court in MCCC No. 3638 of 2022. The Respondent was well aware of this application all along.
b. Respondent's advocates have not denied having instructions in the matter when the matter was compromised or made any allegation of misrepresentation or fraud. As such, there is no reason, be it fraud or misrepresentation, to vitiate the consent order.
c. Respondent is further estopped because it was on the reliance of that compromise made, which the Appellant, after the Court granted the order, proceeded to make the payment for security for costs. In Central London Property Trust Ltd v High Trees House Ltd, KB 130 , where a party, having received a formal order, does not timely object to its existence or effect and instead remains silent, equity may intervene to prevent that party from later denying the order by applying the doctrine of promissory estoppel. The courts have recognized that silence or acquiescence in such circumstances can amount to an implied representation or promise that the party accepts the existence of the order, and it would be unconscionable to allow the Respondent to dispute it later, especially if the Appellant has acted in reliance on that position. As articulated in Lacy v. Wozencraft, 188 Okl. 19, 105 P.2d 781 , and echoed in STRAHM v. BOARD OF TRUSTEES (1950), promissory estoppel can arise from silence when a person fails to speak out on receipt of an order, knowing that others are relying on their lack of objection.
50. The applicant asserted that if the Judgment of this Honourable Court continues to stand as-is, the Respondent will not only endure the loss of their assets and source of livelihood, but they will also be condemned unheard, having been unfairly removed from the seat of justice without being afforded a hearing in their Defense.
51. The applicant thus urged this court to allow the review application.
52. By an Order of this Honourable Court, the Defense and Counter-claim dated 5th June, 2023 was admitted into the Trial Court's record. The rules of justice, therefore, dictated that the Defense having been accepted into the Court's record, the Appeal be allowed to pave the way and will enable the suit that was before the Trial Court to proceed on its merits.
53. This Honourable Court reviews, discharges, varies, and/or sets aside the Judgment delivered by this court on 15" May, 2025 and to substitute the same with a decision allowing the Appeal.
54. The Honourable Court be pleased to direct that the dispute between the parties be referred back to the Trial Court for hearing on priority basis.
55. The Honourable Court grants such other orders and directions as may appear to this Honourable Court just and convenient to grant under the circumstances.
RESPONDENT'S CASE
56. The Application seeks a review of the Judgment by this Honourable Court dismissing the Applicant's Appeal with no costs.
57. By a Plaint dated 14th July 2022, the Respondent herein instituted a claim against the Appellant seeking relief for the sum of Kshs. 7,049,439.87/= being the outstanding debt owing to the Respondent together with interest and costs of the suit.
58. The Summons to Enter Appearance were served alongside the Plaint and other accompanying documents on the Defendant on 26th July 2022. The Respondent was required to enter an appearance within 15 days from the date of service.
59. The Respondent, however, entered an appearance on 15th August 2022 and the Appellant received the Memorandum of Appearance "Under Protest" on account of the same being filed out of time.
60. In the meantime, the parties continued to engage in further negotiations through correspondence in a bid to reach a settlement, however, the Appellant's claim that out-of-court negotiations were commenced on 24th August 2022 is an attempt to mislead the Court. The Respondent has been keen on having the matter settled and as such they continued to engage the Respondent in settlement talks even after commencement of the suit.
61. Noting that the engagements that continued after the commencement of the suit were futile and that the Appellant had not filed its Defence or any further pleadings in the matter, the Respondent proceeded to file a Request for Judgment dated 9th February 2023 on an even date.
62. It is instructive to note that any negotiations between parties do not halt the parties's statutory obligations. Therefore, the Appellant had an obligation to comply with the timelines provided in the Civil Procedure Act and Civil Procedure Rules.
63. The Request for Judgment was endorsed by the Learned Magistrate on 28th April 2023and the Respondent subsequently prepared and served the Appellant with a draft decree on 2nd June 2023 for their review and/or approval with or without amendments.
64. The Appellant consequently filed an Application dated 5th June 2023 seeking inter alia a stay of execution of the ex-parte Judgment delivered on 28th April 2023, the Decrees and any consequential Orders and proceedings arising therefrom.
65. The Trial Court on 29th September 2023 delivered its Ruling on the Appellant's Application dated 5th June 2023 allowing the Application in the following terms:
a) THAT the Defendant pays throw-away costs of Kshs. 20,000 to the Plaintiff within 14 days from the date hereof;
b) THAT the Defendant is ordered to file and serve the Defence within 14 days from the date hereof.
c) THAT failure to comply with Orders No. 1 and 2 above, the orders setting aside Judgment will lapse automatically.
66. The 14 days ordered by the Court lapsed on 13th October 2023 and the Defendant filed and served its Defence and Counterclaim on 16th October 2023. The Appellant alleges that they filed the Defence and Counterclaim on 15th October 2023 but the date confirmed from the judiciary portal as to when theyfiled the Defence and Counterclaim is 16th October 2023. The delay by the Appellant was 3 days and not 2 as pleaded in the submissions.
67. According to the respondent when the matter came up for Mention on 1st November 2023 for purposes of confirming the Defendant's compliance, the Respondent's Advocate pointed out the Appellant's non-compliance and sought leave to execute on account of such non-compliance.
68. The Appellant's Advocate acknowledged that they had indeed filed the Appellant's Defence and Counterclaim outside the 14 days granted by the Court and sought the Court's indulgence. It was the Respondent's position that the Orders issued by the Court were self-executing and the Court lacked the requisite jurisdiction to grant any leave as it was functus officio.
69. Upon hearing both Advocate's oral Submissions, the Learned Magistrate declined to set aside the Orders of 29th September 2023 and subsequently granted the Respondent liberty to execute.
70. The Appellant then proceeded to file a Notice of Motion Application1 dated 1st November 2023 to stay the ex-parte judgment and be granted leave to file its defence for the second time. The said application was dismissed by the court on 18th December 2023for lack of merit.
71. The Appellant challenged the Trial Court's Ruling of 18th December 2023 vide a Memorandum of Appeal dated 29th September 2023.
72. The Appeal was canvassed by way of Submissions and by a Judgment delivered on 14th May 2025, this Honourable Court dismissed the Appeal with no costs. The respondent set out the facts in the submissions and identified the following issues for determination.
a) Whether the Application is merited to warrant grant of orders of review.
b) What was the effect of the consent order arising from the Application dated 2nd January 2024.
c) Who should bear the costs of the Application .
73. On whether the application is merited to warrant grant of orders of review the respondent argued that this Honourable Court is vested with the power of review but the power must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
74. The res
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