1. Before me is the application dated the 8th May,2025 brought under Sections 347, 349, and 354 of the Criminal Procedure Code, Article 50 (2)(q) of the Constitution and all the enabling provisions of the law. The applicant is seeking for the following Orders:-
1) Spent
2) That the Honourable court be pleased to consolidate this suit with Milimani HCACE MISC. No. E003 of 2025 Stephen (Anjawa Onyango vs. Republic and HCACEC MISC No. E004 of 2025 Cheruiyot Kirui vs. the Republic for the purposes of the hearing and determination of this application.
3) That this Honourable court be pleased to review its ruling delivered on the 23rd April,2025 and set aside the Order dismissing the application dated the 5th January,2025,
4) That upon granting prayer (3) above, this Honourable court be pleased to allow the application dated the 5th January, 2025.
2. The application is premised on the grounds set out on the body of the same, and its supported by the annexed affidavit sworn by Jane Muchina Wamarwa.
3. The applicants herein filed an earlier application dated the 5th January, 2025 seeking leave to appeal out of time against the Judgment of Hon. Isabella Barasa in Milimani MCAC No. E011 of 2012 delivered on the 6th December, 2024, which application was heard by this court and a ruling delivered on the 23rd April, 2025 dismissing the said application.
4. The applicants being dissatisfied by that ruling have now moved this court vide the present application seeking to review those Orders, among other Orders. The applicant avers that there is an error apparent on the record and in particular, in paragraph 10 of the ruling where the court indicated the reason for the failure by the applicants to file the appeal on time was on account of their sickness whereas, it is their advocate who was sick and not them.
5. The second error as per the applicant’s affidavit is that the ruling of the court indicates that the draft Memoranda of appeals were not annexed to the supporting affidavit whereas they were indeed annexed to the further affidavits of the applicants. That these two fundamental errors led to the court’s ultimate decision to dismiss the application dated the 5th January, 2025, and it is imperative that this court amends the errors and review its ruling and consequent Orders thereof.
6. The applicant avers that this Honourable court has discretion to correct the said errors in the interest of justice, and has urged the court to consider that the application was brought without undue delay.
7. The respondent filed Grounds of Opposition dated the 19th May, 2025 relying on the following grounds;
(1) The application is legally untenable, bad in law, amounting to an abuse of due process of the court.
(2) The applicants have not established the legal threshold for the grant of review of the Orders sought.
(3) That pursuant to the Provision of Section 364 (5) of the Criminal Procedure Code, when an appeal lies from a finding, sentence or Order and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(4) That pursuant to the Provision of Section 382 of the Criminal Procedure Code, no finding, sentence or Order passed by a court of competent jurisdiction, shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, order, judgment or other proceedings, unless the error, omission or irregularity has occasioned a miscarriage of justice.
(5) That the court properly made a finding that it was not satisfied that the failure to enter the appeal within the 14 days was caused by the inability of the appellant or his advocate to obtain a copy of the judgment or Order appealed against, and a copy of the record within a reasonable time of applying to the court.
(6) That the Honourable court lacks jurisdiction to grant the Orders sought by the applicants.
(7) That the application lacks merits and the same should be dismissed entirely.
8. The application was disposed of by way of written submissions.
APPLICANT’S SUBMISSIONS
9. In her submissions, the applicant asked the court to be guided by the record of the court and relied on the case of Johnson Kobia M’impwi vs. Director of Public Prosecutions (2020) eKLR in which the court stated that review of an earlier decision by the court should be weighed against the reasons advanced, and the law.
10. The applicant has further submitted that the errors are fundamental and they go to the root of the determination of the court. She has averred that the right to a fair hearing as encapsulated under Article 50 of the Constitution assures the parties of their day in court, and have all the materials they have placed before the court considered before a determination is arrived at.
11. The applicant contends that the court record was improper and incomplete denying the applicants their right to be properly and fairly heard, and it denied the court the opportunity to give a conclusive determination based on the materials on record. That had the court record been complete, the court would have seen the draft Memoranda of appeals and appreciate the grounds raised by the applicants.
12. The applicant avers that the errors occurred due to improper submissions and the lack of further affidavits on the court record, and urged the court to excuse the errors and review the aforesaid ruling.
RESPONDENT’S SUBMISSIONS
13. The respondent submitted on the Provision of Section 382 of the Criminal Procedure Code which states that no finding, sentence or Order passed by a court of competent jurisdiction, shall be reversed or altered on appeal or revision, on account of an error, omission or irregularity, in the complaint, order judgment or other proceedings, unless the error, omission or irregularity has occasioned failure of justice. Reliance was placed on the case of Florence Wairimu Mbugua Vs. Timber Manufacturers and Dealers Limited Civil Application Number E019 of 2023, which reiterated the case of Fredrick Otieno Outa in which, the court stated that the slip rule permits a court of law to correct errors that are apparent on the face of the judgment or the ruling or Order. Further, that such errors must be obvious that their correction cannot generate controversy regarding the judgment or the decision of the court.
14. Reliance was also placed on the case of Murali Sundaram vs. Jothibai Kannan & Others (Civil Appeal numbers 1167-1170 of 2023 in which the court observed that the review court should not sit on appeal over its own Order and that a review should not be an appeal in disguise.
15. It further submitted that, it matters not whether it is the advocate or the applicants who were sick but what is important is that there is no legal basis upon which the court can make an informed finding concerning the credibility on averment of the applicants’ Advocate’s sickness and argued that the issue of fact of sickness would be better placed if an affidavit in support was sworn by the advocate himself.
16. The respondent contended that the finding of the court upon evaluation of the submissions by both the applicants and the respondent was that the application fell short of the criteria for granting the Orders sought, in which event, an appeal would ordinarily lie against that decision and not a review.
ANALYSIS AND DETERMINATION
17. The court has considered the application together with the supporting affidavit and the Grounds of Opposition. I have also taken into account the submissions filed by the Counsel of the respective parties herein.
“The only issue for determination is whether the applicant has met the threshold for the grant of an Order of review.
18. The applicant herein moved the Court seeking leave to review its ruling dated the 23rd April, 2025 dismissing the application dated the 5th January, 2025. In the said application, the applicant had sought leave to appeal out of time, which this court dismissed for the reasons that the applicants had not annexed the memoranda of appeal, and that, from the submissions and the supporting affidavit, there were contradicting reasons why the appeals were not filed on time.
19. In support of the application, the applicant has relied on the ground that there are two errors apparent on the record in that, in the ruling that was delivered by the court, the court indicated that the reasons stated by the applicant in the supporting affidavit were different from those that were stated in the submissions. The applicant averred that the delay was due to the fact that the advocate was sickly and not the applicant, and as such, the applicants could not get the proceedings and the judgment of the court.
20. In the case of Johnson Kobia M’impwi Vs. Director of Public Prosecutions (Criminal Review No. 333 of 2018) the Learned Judge Gikonyo had this to say about review in criminal cases;
“Review of an earlier decision by the court in a Criminal revision should be weighed against the reasons advanced and the law. In its criminal jurisdiction, discovery of new and important matter or evidence is a basis for review. I should also think that review on account of some mistake or error apparent on the face of the record is also potent ground. Any other sufficient reason should warrant a review. For instance, the gravity of the matters complained of, say, infringement of fundamental rights and freedom should form sufficient reason to review the earlier Order of the court.’’
21. In the matter herein, the court has perused the court record again, and it can confirm that there was an error apparent on the face of the record. The applicant’s submissions in support of the application dated 5th January, 2025 cited the case of Michael Mukhwana Wanyonyi vs. Republic eKLR which made reference to Corona Pandemic and not in the case of the applicant herein. It is now clear that the reason why the applicants did not file the appeals on time is because their advocate fell sick and they could not get the proceedings on time, and on that account, he was not able to follow them up for them.
22. On the issue of the further affidavit, the same was not on record when the court delivered its ruling on the 23rd April, 2025. The same was missing from the court file and as such, the court did not have the benefit of perusing the memoranda of appeals and discern whether they have arguable appeals with high chances of success or not.
23. The court has since perused the Memoranda of appeals and I do appreciate that at this point in time, the court should not delve into the merits of the appeal as this is the jurisdiction of the court that will hear the main appeal. Suffice it to say that the appellants have an arguable appeal. However, this is not to say that their appeals will succeed, but it’s only fair that they are given an opportunity to ventilate their appeals.
24. In the end, the court finds that the application has merits and it is allowed. The court makes the following Orders;
a) This appeal be and is hereby consolidated with Milimani HCACEC MISC E003 of 2025 (Stephen Anjala Onyango vs. Republic and Milimani HCACE MISC NO. E004 of 2025 (Onesmus Cheruiyot Kirui vs. Republic) for purposes of hearing and determination.
b) The Ruling delivered on the 23rd April, 2025 is hereby set aside and in its place, an Order is hereby issued allowing the application dated the 5th January, 2025.
c) The appeals be filed within 14 days from the date of this ruling.
25. It is hereby ordered.
Dated, signed and delivered virtually on this 2nd day of July, 2025.
...............................
L. M. NJUGUNA
JUDGE
In the presence of:-
Mr. Mwachoti for the Applicant
Mr. Mong’are for the Respondent
Court assistant – Adan
1) Spent
2) That the Honourable court be pleased to consolidate this suit with Milimani HCACE MISC. No. E003 of 2025 Stephen (Anjawa Onyango vs. Republic and HCACEC MISC No. E004 of 2025 Cheruiyot Kirui vs. the Republic for the purposes of the hearing and determination of this application.
3) That this Honourable court be pleased to review its ruling delivered on the 23rd April,2025 and set aside the Order dismissing the application dated the 5th January,2025,
4) That upon granting prayer (3) above, this Honourable court be pleased to allow the application dated the 5th January, 2025.
2. The application is premised on the grounds set out on the body of the same, and its supported by the annexed affidavit sworn by Jane Muchina Wamarwa.
3. The applicants herein filed an earlier application dated the 5th January, 2025 seeking leave to appeal out of time against the Judgment of Hon. Isabella Barasa in Milimani MCAC No. E011 of 2012 delivered on the 6th December, 2024, which application was heard by this court and a ruling delivered on the 23rd April, 2025 dismissing the said application.
4. The applicants being dissatisfied by that ruling have now moved this court vide the present application seeking to review those Orders, among other Orders. The applicant avers that there is an error apparent on the record and in particular, in paragraph 10 of the ruling where the court indicated the reason for the failure by the applicants to file the appeal on time was on account of their sickness whereas, it is their advocate who was sick and not them.
5. The second error as per the applicant’s affidavit is that the ruling of the court indicates that the draft Memoranda of appeals were not annexed to the supporting affidavit whereas they were indeed annexed to the further affidavits of the applicants. That these two fundamental errors led to the court’s ultimate decision to dismiss the application dated the 5th January, 2025, and it is imperative that this court amends the errors and review its ruling and consequent Orders thereof.
6. The applicant avers that this Honourable court has discretion to correct the said errors in the interest of justice, and has urged the court to consider that the application was brought without undue delay.
7. The respondent filed Grounds of Opposition dated the 19th May, 2025 relying on the following grounds;
(1) The application is legally untenable, bad in law, amounting to an abuse of due process of the court.
(2) The applicants have not established the legal threshold for the grant of review of the Orders sought.
(3) That pursuant to the Provision of Section 364 (5) of the Criminal Procedure Code, when an appeal lies from a finding, sentence or Order and no appeal is brought, no proceedings by way of revision shall be entertained at the instance of the party who could have appealed.
(4) That pursuant to the Provision of Section 382 of the Criminal Procedure Code, no finding, sentence or Order passed by a court of competent jurisdiction, shall be reversed or altered on appeal or revision on account of an error, omission or irregularity in the complaint, order, judgment or other proceedings, unless the error, omission or irregularity has occasioned a miscarriage of justice.
(5) That the court properly made a finding that it was not satisfied that the failure to enter the appeal within the 14 days was caused by the inability of the appellant or his advocate to obtain a copy of the judgment or Order appealed against, and a copy of the record within a reasonable time of applying to the court.
(6) That the Honourable court lacks jurisdiction to grant the Orders sought by the applicants.
(7) That the application lacks merits and the same should be dismissed entirely.
8. The application was disposed of by way of written submissions.
APPLICANT’S SUBMISSIONS
9. In her submissions, the applicant asked the court to be guided by the record of the court and relied on the case of Johnson Kobia M’impwi vs. Director of Public Prosecutions (2020) eKLR in which the court stated that review of an earlier decision by the court should be weighed against the reasons advanced, and the law.
10. The applicant has further submitted that the errors are fundamental and they go to the root of the determination of the court. She has averred that the right to a fair hearing as encapsulated under Article 50 of the Constitution assures the parties of their day in court, and have all the materials they have placed before the court considered before a determination is arrived at.
11. The applicant contends that the court record was improper and incomplete denying the applicants their right to be properly and fairly heard, and it denied the court the opportunity to give a conclusive determination based on the materials on record. That had the court record been complete, the court would have seen the draft Memoranda of appeals and appreciate the grounds raised by the applicants.
12. The applicant avers that the errors occurred due to improper submissions and the lack of further affidavits on the court record, and urged the court to excuse the errors and review the aforesaid ruling.
RESPONDENT’S SUBMISSIONS
13. The respondent submitted on the Provision of Section 382 of the Criminal Procedure Code which states that no finding, sentence or Order passed by a court of competent jurisdiction, shall be reversed or altered on appeal or revision, on account of an error, omission or irregularity, in the complaint, order judgment or other proceedings, unless the error, omission or irregularity has occasioned failure of justice. Reliance was placed on the case of Florence Wairimu Mbugua Vs. Timber Manufacturers and Dealers Limited Civil Application Number E019 of 2023, which reiterated the case of Fredrick Otieno Outa in which, the court stated that the slip rule permits a court of law to correct errors that are apparent on the face of the judgment or the ruling or Order. Further, that such errors must be obvious that their correction cannot generate controversy regarding the judgment or the decision of the court.
14. Reliance was also placed on the case of Murali Sundaram vs. Jothibai Kannan & Others (Civil Appeal numbers 1167-1170 of 2023 in which the court observed that the review court should not sit on appeal over its own Order and that a review should not be an appeal in disguise.
15. It further submitted that, it matters not whether it is the advocate or the applicants who were sick but what is important is that there is no legal basis upon which the court can make an informed finding concerning the credibility on averment of the applicants’ Advocate’s sickness and argued that the issue of fact of sickness would be better placed if an affidavit in support was sworn by the advocate himself.
16. The respondent contended that the finding of the court upon evaluation of the submissions by both the applicants and the respondent was that the application fell short of the criteria for granting the Orders sought, in which event, an appeal would ordinarily lie against that decision and not a review.
ANALYSIS AND DETERMINATION
17. The court has considered the application together with the supporting affidavit and the Grounds of Opposition. I have also taken into account the submissions filed by the Counsel of the respective parties herein.
“The only issue for determination is whether the applicant has met the threshold for the grant of an Order of review.
18. The applicant herein moved the Court seeking leave to review its ruling dated the 23rd April, 2025 dismissing the application dated the 5th January, 2025. In the said application, the applicant had sought leave to appeal out of time, which this court dismissed for the reasons that the applicants had not annexed the memoranda of appeal, and that, from the submissions and the supporting affidavit, there were contradicting reasons why the appeals were not filed on time.
19. In support of the application, the applicant has relied on the ground that there are two errors apparent on the record in that, in the ruling that was delivered by the court, the court indicated that the reasons stated by the applicant in the supporting affidavit were different from those that were stated in the submissions. The applicant averred that the delay was due to the fact that the advocate was sickly and not the applicant, and as such, the applicants could not get the proceedings and the judgment of the court.
20. In the case of Johnson Kobia M’impwi Vs. Director of Public Prosecutions (Criminal Review No. 333 of 2018) the Learned Judge Gikonyo had this to say about review in criminal cases;
“Review of an earlier decision by the court in a Criminal revision should be weighed against the reasons advanced and the law. In its criminal jurisdiction, discovery of new and important matter or evidence is a basis for review. I should also think that review on account of some mistake or error apparent on the face of the record is also potent ground. Any other sufficient reason should warrant a review. For instance, the gravity of the matters complained of, say, infringement of fundamental rights and freedom should form sufficient reason to review the earlier Order of the court.’’
21. In the matter herein, the court has perused the court record again, and it can confirm that there was an error apparent on the face of the record. The applicant’s submissions in support of the application dated 5th January, 2025 cited the case of Michael Mukhwana Wanyonyi vs. Republic eKLR which made reference to Corona Pandemic and not in the case of the applicant herein. It is now clear that the reason why the applicants did not file the appeals on time is because their advocate fell sick and they could not get the proceedings on time, and on that account, he was not able to follow them up for them.
22. On the issue of the further affidavit, the same was not on record when the court delivered its ruling on the 23rd April, 2025. The same was missing from the court file and as such, the court did not have the benefit of perusing the memoranda of appeals and discern whether they have arguable appeals with high chances of success or not.
23. The court has since perused the Memoranda of appeals and I do appreciate that at this point in time, the court should not delve into the merits of the appeal as this is the jurisdiction of the court that will hear the main appeal. Suffice it to say that the appellants have an arguable appeal. However, this is not to say that their appeals will succeed, but it’s only fair that they are given an opportunity to ventilate their appeals.
24. In the end, the court finds that the application has merits and it is allowed. The court makes the following Orders;
a) This appeal be and is hereby consolidated with Milimani HCACEC MISC E003 of 2025 (Stephen Anjala Onyango vs. Republic and Milimani HCACE MISC NO. E004 of 2025 (Onesmus Cheruiyot Kirui vs. Republic) for purposes of hearing and determination.
b) The Ruling delivered on the 23rd April, 2025 is hereby set aside and in its place, an Order is hereby issued allowing the application dated the 5th January, 2025.
c) The appeals be filed within 14 days from the date of this ruling.
25. It is hereby ordered.
Dated, signed and delivered virtually on this 2nd day of July, 2025.
...............................
L. M. NJUGUNA
JUDGE
In the presence of:-
Mr. Mwachoti for the Applicant
Mr. Mong’are for the Respondent
Court assistant – Adan