Introduction & Background
1. The Respondent has filed the Notice of Motion dated 19 th February 2026 under section 1A, 1B, 3A & 80 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) and Order 45 Rule 1(1)(a) and 51 Rule 1 of the Civil Procedure Rules seeking to review and set aside of Order No. 1 of the court’s ruling of 22 nd January 2026 which granted the Applicants leave to file and serve their memorandum of appeal within seven days from the date of the ruling.
2. This application is supported by grounds on its face and the supporting affidavit of the Respondent sworn on 19 th February 2026. It is opposed by the Applicants through the replying affidavit of their advocate Tracey Auma Odero, sworn on 5 th March 2026. The application was canvassed by way of written submissions which are on record and I have considered the same together with the pleadings and I will be making relevant references to them in my analysis and determination below.
Analysis and Determination
3. The primary issue for the court’s determination is whether the court ought to review and set aside Order 1 of its ruling for failure by the Applicants to file and serve the Memorandum of Appeal within 7 days as ordered by the court. I do not think it is in dispute that under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules , an applicant is required to show either that there was an error apparent on the face of record or that there has been discovery of new and important matter which was not available despite the exercise of due diligence or for any other sufficient reason for the court to review.
4. The Respondent depones that the Applicants have failed to comply with the court's orders as they have not filed a memorandum of appeal within the 7-day period as ordered by the court. That if they have filed one, they have failed to serve it on the Respondent, leaving him unaware of its status. The Respondent contends that he has suffered severe injuries and financial ruin from the subject accident and that despite winning the judgment nearly a year ago, he has been unable to enjoy the fruits of the award because the Applicants have neither paid the decretal sum nor properly filed and/or served an appeal.
5. In response, the Applicants state that immediately after the ruling on 22 nd January 2026, they filed their Memorandum of Appeal in Machakos HCCA No. E007 of 2026 on the very same day but they admit to have inadvertently overlooked serving the Memorandum of Appeal on the Respondent's counsel immediately. That the court had ordered the decretal sum of Kshs. 2,384,694.00 to be deposited into a joint interest-earning account within 45 days which was to be by 8 th March 2026 and that the Applicants took immediate steps to comply by sending a letter on 3 rd February 2026 to the Respondent’s counsel to facilitate opening the joint account and depositing the decretal sum into the account on 24 th February 2026 which was 33 days after the ruling and well within the 45-day deadline.
6. The Applicants depone that the court file was with the Accounts Section to prioritize compliance with the deposit condition, as failure would have exposed them to execution. That immediately after confirming the deposit, the Applicants served the Memorandum of Appeal on the Respondent's counsel via email and that at the time of service, no hearing date had been set. The Applicants aver that the Respondent is now fully aware of the appeal and has suffered no prejudice and that he will have a full opportunity to respond at the appropriate stage. Further, that filing the Memorandum of Appeal formally initiates the appeal, but the process is not complete until the record is compiled and directions are taken and therefore, the Respondent's claim that they were denied the right to respond is misplaced and premature.
7. For these reasons, the Applicants urge that the service of the Memorandum of Appeal be deemed duly effected, that the appeal be heard and determined on its merits and that the Respondent's application be dismissed with costs.
8. Having gone through the pleadings and submissions together with the principles for review outlined above, I find that the Respondent has not made out a case for review under Order 45 of the Civil Procedure Rules for a number of reasons. First, I find that no new evidence has been discovered as all the facts, including that of late service were known to the Respondent and form the basis of the application. Second, there is no self-evident error in the court's Ruling. The court's order was clear that the Applicants were to file and serve the Memorandum of Appeal within 7 days and I find that the subsequent non-compliance is a breach and not an error by the court. As held by the Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 , a different interpretation of the law or facts is not a reviewable error.
9. Third, on any other sufficient reason and whether the review should be granted in the interest of justice, this court (Mativo J., as he was then) in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) held that this "sufficient reason" must be analogous to the other grounds. The Respondent’s grievance is essentially that the Applicants disobeyed the court's order. While this is a serious matter, the proper remedy is enforcement of the order such as the automatic lapse of the stay as set out under Order 4 of the ruling or striking out the appeal, not review of the ruling. As the court in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya(supra) held, a party's dissatisfaction with the outcome or the court's application of the law is not a ground for review.
10. It is therefore my finding that the Respondent is not challenging an error by the court but the Applicants’ failure to comply with the court's order which was correct and unambiguous. Any subsequent non-compliance is a matter of enforcement and not review and I find that the Applicants have demonstrated substantial compliance by filing the appeal on time and depositing the decretal sum and the delay in service was inadvertent and explained. I agree that the overriding objective and Article 159(2)(d) of the Constitution favour sustaining the appeal and allowing it to be heard on its merits, especially where no serious prejudice has been shown.
Conclusion and Disposition
11. In the foregoing, the Respondent’s application dated 19 th February 2026 is dismissed. Costs of this application shall abide the outcome of the appeal.
DATED SIGNED AND DELIVERED virtually this 10 th DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Florence Mwangangi for the Applicant
2. Ms. Odero for the Respondent
3. Abdisalan- Court Assistant
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1. The Respondent has filed the Notice of Motion dated 19 th February 2026 under section 1A, 1B, 3A & 80 of the Civil Procedure Act (Chapter 21 of the Laws of Kenya) and Order 45 Rule 1(1)(a) and 51 Rule 1 of the Civil Procedure Rules seeking to review and set aside of Order No. 1 of the court’s ruling of 22 nd January 2026 which granted the Applicants leave to file and serve their memorandum of appeal within seven days from the date of the ruling.
2. This application is supported by grounds on its face and the supporting affidavit of the Respondent sworn on 19 th February 2026. It is opposed by the Applicants through the replying affidavit of their advocate Tracey Auma Odero, sworn on 5 th March 2026. The application was canvassed by way of written submissions which are on record and I have considered the same together with the pleadings and I will be making relevant references to them in my analysis and determination below.
Analysis and Determination
3. The primary issue for the court’s determination is whether the court ought to review and set aside Order 1 of its ruling for failure by the Applicants to file and serve the Memorandum of Appeal within 7 days as ordered by the court. I do not think it is in dispute that under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules , an applicant is required to show either that there was an error apparent on the face of record or that there has been discovery of new and important matter which was not available despite the exercise of due diligence or for any other sufficient reason for the court to review.
4. The Respondent depones that the Applicants have failed to comply with the court's orders as they have not filed a memorandum of appeal within the 7-day period as ordered by the court. That if they have filed one, they have failed to serve it on the Respondent, leaving him unaware of its status. The Respondent contends that he has suffered severe injuries and financial ruin from the subject accident and that despite winning the judgment nearly a year ago, he has been unable to enjoy the fruits of the award because the Applicants have neither paid the decretal sum nor properly filed and/or served an appeal.
5. In response, the Applicants state that immediately after the ruling on 22 nd January 2026, they filed their Memorandum of Appeal in Machakos HCCA No. E007 of 2026 on the very same day but they admit to have inadvertently overlooked serving the Memorandum of Appeal on the Respondent's counsel immediately. That the court had ordered the decretal sum of Kshs. 2,384,694.00 to be deposited into a joint interest-earning account within 45 days which was to be by 8 th March 2026 and that the Applicants took immediate steps to comply by sending a letter on 3 rd February 2026 to the Respondent’s counsel to facilitate opening the joint account and depositing the decretal sum into the account on 24 th February 2026 which was 33 days after the ruling and well within the 45-day deadline.
6. The Applicants depone that the court file was with the Accounts Section to prioritize compliance with the deposit condition, as failure would have exposed them to execution. That immediately after confirming the deposit, the Applicants served the Memorandum of Appeal on the Respondent's counsel via email and that at the time of service, no hearing date had been set. The Applicants aver that the Respondent is now fully aware of the appeal and has suffered no prejudice and that he will have a full opportunity to respond at the appropriate stage. Further, that filing the Memorandum of Appeal formally initiates the appeal, but the process is not complete until the record is compiled and directions are taken and therefore, the Respondent's claim that they were denied the right to respond is misplaced and premature.
7. For these reasons, the Applicants urge that the service of the Memorandum of Appeal be deemed duly effected, that the appeal be heard and determined on its merits and that the Respondent's application be dismissed with costs.
8. Having gone through the pleadings and submissions together with the principles for review outlined above, I find that the Respondent has not made out a case for review under Order 45 of the Civil Procedure Rules for a number of reasons. First, I find that no new evidence has been discovered as all the facts, including that of late service were known to the Respondent and form the basis of the application. Second, there is no self-evident error in the court's Ruling. The court's order was clear that the Applicants were to file and serve the Memorandum of Appeal within 7 days and I find that the subsequent non-compliance is a breach and not an error by the court. As held by the Court of Appeal in National Bank of Kenya Limited v Ndungu Njau [1996] KLR 469 , a different interpretation of the law or facts is not a reviewable error.
9. Third, on any other sufficient reason and whether the review should be granted in the interest of justice, this court (Mativo J., as he was then) in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) held that this "sufficient reason" must be analogous to the other grounds. The Respondent’s grievance is essentially that the Applicants disobeyed the court's order. While this is a serious matter, the proper remedy is enforcement of the order such as the automatic lapse of the stay as set out under Order 4 of the ruling or striking out the appeal, not review of the ruling. As the court in Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya(supra) held, a party's dissatisfaction with the outcome or the court's application of the law is not a ground for review.
10. It is therefore my finding that the Respondent is not challenging an error by the court but the Applicants’ failure to comply with the court's order which was correct and unambiguous. Any subsequent non-compliance is a matter of enforcement and not review and I find that the Applicants have demonstrated substantial compliance by filing the appeal on time and depositing the decretal sum and the delay in service was inadvertent and explained. I agree that the overriding objective and Article 159(2)(d) of the Constitution favour sustaining the appeal and allowing it to be heard on its merits, especially where no serious prejudice has been shown.
Conclusion and Disposition
11. In the foregoing, the Respondent’s application dated 19 th February 2026 is dismissed. Costs of this application shall abide the outcome of the appeal.
DATED SIGNED AND DELIVERED virtually this 10 th DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Ms. Florence Mwangangi for the Applicant
2. Ms. Odero for the Respondent
3. Abdisalan- Court Assistant
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