This is a ruling on an Interlocutory appeal arising from the decision of the learned Magistrate as contained in the ruling delivered on 16th February, 2024 in which the appellant application dated 8th August 2023 was dismissed. In the application, the appellant had sought review of the judgement of the Magistrate court rendered on 4th August, 2024, where the court dismissed the appellant suit for the reason that the claim for special damages was not proved.
Dissatisfied with the said ruling, the appellant preferred the present Appeal setting forth the following two grounds;
1 THAT the Honourable Magistrate erred in Law and in fact in dismissing the appellants application dated 15th August 2023 for review of its judgement entered on 4th August 2023.
2 THAT the Magistrate erred in law and in fact in failing to appreciate the appellants submissions.
Background
By a plaint filed before the Magistrate court on 3rd September 2021, the plaintiff/ appellant sought judgement against the Defendant/respondent arising from a road traffic accident that occurred on 11th July 2021. The accident involved vehicle registration number KCR 103L driven by the plaintiff and KCP 678V driven by the defendant. As a result of the accident, the plaintiff motor vehicle was damaged and she sued for compensation.
At the conclusion of the hearing, the learned Magistrate, after review of the evidence and the documents presented by the parties dismissed the plaintiff suit holding that although the accident did indeed occur and the appellant vehicle damaged, the appellant did not avail documentary evidence of the expenses incurred in repairing the vehicle.
As stated earlier in this ruling, the appellant dissatisfied with the decision by the Magistrate dismissing the suit, filed application dated 8th August 2023, under section 1A, 1B and 3A, section 80 of the Civil Procedure Act, Order 45 rule1 of the Civil Procedure rules seeking in the main the review, setting aside and/or varying of judgement delivered on 4th August 2023.
In a ruling delivered on 16th February, 2024, the Learned Magistrate considered the application for review and held that the same had not met the threshold set out in Order 45 of the Civil Procedure rules and dismissed the same with cost.
It is the above ruling that the appellant has appealed against and which is the subject of this ruling.
I have considered Submissions of respective counsel and the authorities supplied which I have found useful. The appellant “Final Submissions” dated 9th July 2025 is not complete, paragraph 7 to 15 of the hard copy submissions filed and the one in the CTS are missing. The court however gets the gist of the arguments in this and previous submissions filed by counsel for the appellant.
The appellant submits that the claim for special damages was not only pleaded, but the extent of the damages on the motor vehicle and what it would cost to restore it to as near as possible the condition it was before damaged complained of was also shown. The appellant contends that the claim for special damages was proved based on the assessment report as indicated in the record of appeal and the documents relied on and which were produced by consent of all the parties. The appellant further contend that the Magistrate court failed to evaluate all the evidence placed before it and erroneously dismissed the appellant application for review.
On the other hand, the respondent submitted that the Magistrate court was right in its scrutiny of the evidence and in holding that there was no evidence of particularization of the special damages and therefore there was no error on the face of the record to warrant the exercise of review jurisdiction under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure rules.
Section 80 of the Civil Procedure Act provides that 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 judgement to the Court, which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Order 45 Rule 1 of the Civil Procedure Rules sets down the criteria for review applications as follows: -
1. Application for review of decree or order:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
The above provisions of the Civil Procedure Act have variously been interpreted by superior court in a number of cases including; In Republic -vs-Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR where the Court set out the principles to consider in the review of its own decisions. It was thus observed that;
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
vi. While considering an Application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.
The Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau, remarked on review applications as follows: -
… A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law.
In Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) Supra the Court considered the meaning of some mistake or error apparent on the face of the record as captured in Order 45 of the Civil Procedure Rules. It stated as follows;
… “Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review.
The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible”.
In the instant case, the appellant contends that the trial magistrate in dismissing the application for review, failed to consider the obvious error apparent on the face of the record. The error according to the appellant is the existence of clear evidence of the expenses incurred by the appellant in repairing the damaged vehicle and the availability of the assessor report which the court failed to consider. It is the appellant contention that special damage was specifically pleaded and proved.
It is important to note that the only substantive claim or relief sought by the appellant in the plaint is one of special damages, the claim for General damages and loss of user having been abandoned along the way. The Trial Magistrate was therefore dealing with a single issue of whether the special damages had been pleaded and specifically proved. In the courts view, rightly or wrongly, the appellant had not proved the claim as, “the plaintiff in his pleadings did not specifically list the expenses incurred in repairing the vehicle. He did not also file a list of documents to demonstrate the expenses”.
This finding by the Learned Magistrate was based on her evaluation of the evidence as presented and its application to the law as she understood it. The court was to either agree or disagree with the appellant case on a balance of probability and in this case, was not persuaded that that special damages though pleaded was not specifically proved hence the order dismissing the appellant suit. There was therefore no error apparent on the face of the record the subject of review application filed by the appellant. What the appellant considers as an error apparent on the face of the record is a decision arrived at by the court after evaluation of the evidence. A challenge to such a decision based on an erroneous evaluation of the law and fact is a matter subject for a substantive appeal and not revisionary jurisdiction of the court.
I agree with the Learned Magistrate decision dated 16th February 2024 that the application for review failed to meet the threshold provided for under Order 45 of the Civil Procedure rules and was in my view an attempt by the appellant to appeal the judgement dated 4th August 2023 dismissing the appellant suit.
From the foregoing, I find no merit in the present appeal and dismiss the same with cost.
Dissatisfied with the said ruling, the appellant preferred the present Appeal setting forth the following two grounds;
1 THAT the Honourable Magistrate erred in Law and in fact in dismissing the appellants application dated 15th August 2023 for review of its judgement entered on 4th August 2023.
2 THAT the Magistrate erred in law and in fact in failing to appreciate the appellants submissions.
Background
By a plaint filed before the Magistrate court on 3rd September 2021, the plaintiff/ appellant sought judgement against the Defendant/respondent arising from a road traffic accident that occurred on 11th July 2021. The accident involved vehicle registration number KCR 103L driven by the plaintiff and KCP 678V driven by the defendant. As a result of the accident, the plaintiff motor vehicle was damaged and she sued for compensation.
At the conclusion of the hearing, the learned Magistrate, after review of the evidence and the documents presented by the parties dismissed the plaintiff suit holding that although the accident did indeed occur and the appellant vehicle damaged, the appellant did not avail documentary evidence of the expenses incurred in repairing the vehicle.
As stated earlier in this ruling, the appellant dissatisfied with the decision by the Magistrate dismissing the suit, filed application dated 8th August 2023, under section 1A, 1B and 3A, section 80 of the Civil Procedure Act, Order 45 rule1 of the Civil Procedure rules seeking in the main the review, setting aside and/or varying of judgement delivered on 4th August 2023.
In a ruling delivered on 16th February, 2024, the Learned Magistrate considered the application for review and held that the same had not met the threshold set out in Order 45 of the Civil Procedure rules and dismissed the same with cost.
It is the above ruling that the appellant has appealed against and which is the subject of this ruling.
I have considered Submissions of respective counsel and the authorities supplied which I have found useful. The appellant “Final Submissions” dated 9th July 2025 is not complete, paragraph 7 to 15 of the hard copy submissions filed and the one in the CTS are missing. The court however gets the gist of the arguments in this and previous submissions filed by counsel for the appellant.
The appellant submits that the claim for special damages was not only pleaded, but the extent of the damages on the motor vehicle and what it would cost to restore it to as near as possible the condition it was before damaged complained of was also shown. The appellant contends that the claim for special damages was proved based on the assessment report as indicated in the record of appeal and the documents relied on and which were produced by consent of all the parties. The appellant further contend that the Magistrate court failed to evaluate all the evidence placed before it and erroneously dismissed the appellant application for review.
On the other hand, the respondent submitted that the Magistrate court was right in its scrutiny of the evidence and in holding that there was no evidence of particularization of the special damages and therefore there was no error on the face of the record to warrant the exercise of review jurisdiction under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure rules.
Section 80 of the Civil Procedure Act provides that 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 judgement to the Court, which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Order 45 Rule 1 of the Civil Procedure Rules sets down the criteria for review applications as follows: -
1. Application for review of decree or order:
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(b) by a decree or order from which no appeal is hereby allowed,
and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.
(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.
The above provisions of the Civil Procedure Act have variously been interpreted by superior court in a number of cases including; In Republic -vs-Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR where the Court set out the principles to consider in the review of its own decisions. It was thus observed that;
i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.
ii. The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.
iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.
iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review.
v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.
vi. While considering an Application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.
vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.
viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.
ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.
The Court of Appeal in Civil Appeal No. 2111 of 1996, National Bank of Kenya -vs- Ndungu Njau, remarked on review applications as follows: -
… A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceed on an incorrect expansion of the law.
In Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR) Supra the Court considered the meaning of some mistake or error apparent on the face of the record as captured in Order 45 of the Civil Procedure Rules. It stated as follows;
… “Review is impermissible without a glaring omission, evident mistake or similar ominous error. An error which has to be established by a long-drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Where an alleged error is far from self-evident and if it can be established, it has to be established, by lengthy and complicated arguments, such an error cannot be cured by an order or review.
The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible”.
In the instant case, the appellant contends that the trial magistrate in dismissing the application for review, failed to consider the obvious error apparent on the face of the record. The error according to the appellant is the existence of clear evidence of the expenses incurred by the appellant in repairing the damaged vehicle and the availability of the assessor report which the court failed to consider. It is the appellant contention that special damage was specifically pleaded and proved.
It is important to note that the only substantive claim or relief sought by the appellant in the plaint is one of special damages, the claim for General damages and loss of user having been abandoned along the way. The Trial Magistrate was therefore dealing with a single issue of whether the special damages had been pleaded and specifically proved. In the courts view, rightly or wrongly, the appellant had not proved the claim as, “the plaintiff in his pleadings did not specifically list the expenses incurred in repairing the vehicle. He did not also file a list of documents to demonstrate the expenses”.
This finding by the Learned Magistrate was based on her evaluation of the evidence as presented and its application to the law as she understood it. The court was to either agree or disagree with the appellant case on a balance of probability and in this case, was not persuaded that that special damages though pleaded was not specifically proved hence the order dismissing the appellant suit. There was therefore no error apparent on the face of the record the subject of review application filed by the appellant. What the appellant considers as an error apparent on the face of the record is a decision arrived at by the court after evaluation of the evidence. A challenge to such a decision based on an erroneous evaluation of the law and fact is a matter subject for a substantive appeal and not revisionary jurisdiction of the court.
I agree with the Learned Magistrate decision dated 16th February 2024 that the application for review failed to meet the threshold provided for under Order 45 of the Civil Procedure rules and was in my view an attempt by the appellant to appeal the judgement dated 4th August 2023 dismissing the appellant suit.
From the foregoing, I find no merit in the present appeal and dismiss the same with cost.