Introduction
1. Before me for determination is the Notice of Motion for review dated 23rd April 2026, filed under a certificate of urgency by the Defendant, whom I shall in this ruling refer to as “the Applicant”. The Motion is brought under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and seeks a review of the orders of this Court made on 18th February 2025 by which the Applicant was directed to deposit Kshs. 30,000,000 within fourteen (14) days as security for the due performance of the decree pending appeal.
2. The application is opposed by the Plaintiffs, whom I shall refer to as “the Respondents”, through a replying affidavit filed on 5th May 2026 and written submissions.
Factual Background
3. The substantive suit was determined by the judgment of Okong’o J. delivered on 11th December 2024. His Lordship declared the members of the Applicant to be trespassers upon the land registered as LR No. 6015/3 and issued an eviction order requiring vacation within sixty (60) days.
4. The Court awarded damages in the sum of Kshs. 10,000,000 as general damages and Kshs. 20,000,000 as mesne profits, totalling Kshs. 30,000,000.
5. Upon an application for stay of execution, this Court on 18th February 2025 granted a conditional stay of execution upon the express condition that the Applicant deposit Kshs. 30,000,000 within fourteen (14) days as security for the due performance of the decree pending appeal.
6. The Applicant did not comply with that condition, and the conditional stay accordingly lapsed upon the expiry of the fourteen days.
7. The Respondents thereafter commenced garnishee proceedings and on 29th May 2025 the Court made a garnishee order absolute, permitting the Respondents to realise the sum of Kshs. 30,000,000.
8. The Applicant, aggrieved by that turn of events, now seeks a review of the orders of 18th February 2025, citing the recovery of the security amount as a “change of circumstances” warranting review.
The Legal Framework
9. The jurisdiction to review a judgment or order is conferred by section 80 of the Civil Procedure Act (Cap. 21) and Order 45 of the Civil Procedure Rules . The jurisdiction is exceptional in character and is not intended to serve as an alternative to an appeal.
10. Section 80 provides that a person aggrieved by a decree or order may apply for a review upon the following grounds: -
a) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the order was made;
b) Mistake or error apparent on the face of the record; or
c) Any other sufficient reason.
11. Order 45 rule 1 substantially reproduces those grounds and adds the requirement that the application be made without unreasonable delay.
Issues for determination
12. Having considered the Motion, the replying affidavit and the written submissions of both parties, I am of the view that the following issues arise for determination: -
i) Whether the Applicant has satisfied the threshold for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules;
ii) Whether there has been a discovery of new and important matter within the meaning of the law;
iii) Whether there is an error apparent on the face of the record;
iv) Whether the alleged “change of circumstances” arising from the garnishee proceedings constitutes “any other sufficient reason” for review;
v) Whether the Applicant’s failure to comply with the conditional stay order disentitles it to equitable relief;
vi) Whether the pendency of Civil Appeal No. 207 of 2025 bars this Court from exercising its review jurisdiction;
vii) Whether the application amounts to an abuse of the process of the Court; and
viii) Who should bear the costs of the application.
Analysis and Determination
(i) The threshold for review
13. The law on review is settled. In Jersey Evening Post Limited v Al Thani [2002] JLR the Court held: -
“A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
14. Review is thus a narrow jurisdiction, confined to the correction of demonstrable error, the reception of evidence which was genuinely unavailable, or the redress of grave procedural irregularity. It is not a second avenue of appeal, nor is it a forum for a litigant dissatisfied with the consequences of his own omission.
(ii) Discovery of new and important matter
15. The Applicant anchors its application upon what it characterises as a “change of circumstances”, namely that the Respondents have already recovered the sum of Kshs. 30,000,000 through the garnishee proceedings. With respect, that is not a discovery of new and important matter within the meaning of Order 45.
16. The execution of the decree and the garnishee proceedings which followed were the natural, foreseeable and inevitable consequences of the Applicant’s own failure to comply with the conditional stay order of this Court. As deposed in the replying affidavit: -
“Execution did not occur in secrecy nor did it arise from any unknown fact concealed from the Applicant. Execution was the natural, foreseeable and inevitable consequence of the Applicant’s own failure to comply with this Court’s conditional stay orders.”
17. In Sow Chandra Kanta & Another v Sheik Habib (1975) AIR 1500 , the petitioner had been denied special leave to appeal by the Supreme Court and urged that Court to review its decision. In dismissing the application the Court held: -
“A review of a Judgement is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”
18. The Applicant’s grievance is not that new facts have emerged, but that execution has lawfully proceeded following its own default. The recovery of the funds is a legal consequence of that non-compliance and not a discovery of evidence.
(iii) Error apparent on the face of the record
19. The Applicant does not identify any clerical, mathematical, typographical or patent legal error in the ruling of 18th February 2025. It complains rather that the condition requiring the deposit of Kshs. 30,000,000 has become “onerous” or “unjust” in the light of the garnishee proceedings.
20. As held in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR : -
“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 a 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 proceeded on an incorrect exposition of the law and misconstruing a statute or other provision of law cannot be a ground for review.”
21. There is no error apparent on the face of the ruling of 18th February 2025. The ruling is internally coherent, reasoned and legally sound. The Applicant’s dissatisfaction with the judicial exercise of discretion is not error.
(iv) “Any other sufficient reason”
22. The third limb of Order 45 rule 1 has been the subject of considerable judicial exposition. In Wangechi Kimita & Another v Mutahi Wakibiru (1982-88) 1 KAR 977 , Nyarangi JA held: -
“I see no reason why any other sufficient reason need be analogous with the other grounds in the Order because clearly S.80 of the Civil Procedure Act confers an unfettered right to apply for a review and so the words ‘for any other sufficient reason’ need not be analogous with the other grounds specified in the Order.”
23. Even upon that liberal construction, however, “sufficient reason” cannot embrace the consequences of a litigant’s own deliberate non-compliance. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR , the Court of Appeal observed: -
“The discovery of new and important matter or evidence or mistake or error apparent on the face of the record or for any other sufficient reason in rule 1 of Order 44 (now Order 45 in 2010 Civil Procedure Rules) relates to issues of facts which may emerge from evidence. The discovery does not relate or refer to issues of law. The exercise of due diligence referred to in rule 1 refers to discovery of facts but does not relate to ascertainment of existing law which the court is deemed to be alive to.”
24. The Applicant’s principal complaint is that the Respondents have already received the sum of Kshs. 30,000,000 awarded by the Court and that requiring it to deposit a like amount as security would amount to a double burden. That argument, with respect: -
a) ignores the true character of security. The order of 18th February 2025 directed security not as payment of the damages but as a condition for the discretionary grant of a stay of execution. The two are conceptually distinct;
b) overlooks that the Applicant elected not to comply. The Applicant accepted the conditional stay but failed to perform its condition, and it cannot now reverse that election by invoking the legal consequences of its own default; and
c) seeks to alter the Court’s exercise of discretion rather than to correct an error. Review does not serve as a forum for reconsidering the wisdom or propriety of a discretionary order after time has passed and circumstances have shifted.
(v) Failure to comply with the conditional stay
25. It is a fundamental principle of equity, as counsel for the Respondents correctly submitted, that he who comes to equity must come with clean hands.
26. The conditional stay order was unambiguous: the Applicant was to deposit Kshs. 30,000,000 within fourteen (14) days. The Applicant accepted that condition but did not comply. Paragraphs 8, 9 and 10 of the replying affidavit depose as follows: -
“The Honourable Court on 18th February 2025 issued an interim conditional stay of execution of the decree on condition that the Defendant deposits in court the decretal sum of Kshs. 30,000,000 within fourteen days as security from the date thereof. That the Defendant failed to comply with the terms of the said conditional temporary stay of execution and the same lapsed. That the order issued by the Honourable Court on 18th February 2025 was self-executory and upon the lapse of the period within which the order was to be complied with, the order naturally and procedurally took effect and has since been complied with.”
27. Once a litigant has failed to comply with an order of the Court, it is unconscionable for that litigant to return to the Court seeking to vary or review the order upon the pretext that execution has since occurred. The rule against a party benefiting from its own default is cardinal in equity.
(vi) The pending appeal
28. The Applicant has elected the appellate process. The Notice of Appeal was filed on 18th December 2024 and Civil Appeal No. 207 of 2025 remains pending before the Court of Appeal.
29. In Gerald Kithu Muchanje v Catherine Muthoni Ngare & Another [2020] KECA 511 (KLR) , the Court of Appeal held: -
“Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original Judgement. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somebody and it cannot be conducted on the basis of trial and error.”
30. That principle operates mutatis mutandis in the converse case. Once an appeal has been preferred, a party ought not simultaneously to invoke the review jurisdiction to challenge the same order. To permit that course would: -
a) create parallel proceedings upon the same decision;
b) enable forum shopping between the trial and the appellate courts;
c) undermine the finality of judicial determinations; and
d) occasion a waste of judicial resources.
31. The Applicant’s own admission that Civil Appeal No. 207 of 2025 is pending is, in my view, fatal to the present application. The Applicant must prosecute its remedy before the Court of Appeal rather than return to the trial court seeking a review of the same orders.
(vii) Abuse of the process of the Court
32. The Respondents correctly characterise this application as an attempt to achieve through review that which cannot be achieved through appeal, namely to challenge the exercise of discretion in imposing the security condition and to avoid the legal consequences of non-compliance.
33. In Swai v Kenya Breweries Limited [2014] KECA 883 (KLR) , the Court of Appeal observed: -
“…if parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus officio and have no appellate jurisdiction.”
34. This application bears several hallmarks of abuse: -
a) forum shopping, the Applicant pursuing an appeal while simultaneously seeking a review;
b) circumvention of the appellate procedure, the Applicant seeking to vary a discretionary order without meeting the appellate standard;
c) leveraging of its own non-compliance, the Applicant seeking to convert the consequences of its default into a ground for review; and
d) the prolongation of concluded litigation, more than a year having elapsed since the main judgment.
35. It is a principle as old as the jurisprudence itself that the courts will not lend their assistance to a litigant who abuses their process. Upon this ground alone the application would fall to be dismissed.
(viii) Costs
36. Costs are in the discretion of the Court under section 27 of the Civil Procedure Act and ordinarily follow the event. The Respondents have succeeded in resisting the application and have prayed for costs. I see no reason to depart from the ordinary rule.
Disposition
37. In the result, and for the reasons set out above, I make the following orders: -
i. The Application dated 23rd April 2026 be and is hereby dismissed.
ii. The Applicant shall bear the costs of the application.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 17 TH DAY OF SEPTEMBER 2026.
E. K. WABWOTO
JUDGE
RULING CIVIL SUIT NO. 28 OF 20142
1. Before me for determination is the Notice of Motion for review dated 23rd April 2026, filed under a certificate of urgency by the Defendant, whom I shall in this ruling refer to as “the Applicant”. The Motion is brought under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, and seeks a review of the orders of this Court made on 18th February 2025 by which the Applicant was directed to deposit Kshs. 30,000,000 within fourteen (14) days as security for the due performance of the decree pending appeal.
2. The application is opposed by the Plaintiffs, whom I shall refer to as “the Respondents”, through a replying affidavit filed on 5th May 2026 and written submissions.
Factual Background
3. The substantive suit was determined by the judgment of Okong’o J. delivered on 11th December 2024. His Lordship declared the members of the Applicant to be trespassers upon the land registered as LR No. 6015/3 and issued an eviction order requiring vacation within sixty (60) days.
4. The Court awarded damages in the sum of Kshs. 10,000,000 as general damages and Kshs. 20,000,000 as mesne profits, totalling Kshs. 30,000,000.
5. Upon an application for stay of execution, this Court on 18th February 2025 granted a conditional stay of execution upon the express condition that the Applicant deposit Kshs. 30,000,000 within fourteen (14) days as security for the due performance of the decree pending appeal.
6. The Applicant did not comply with that condition, and the conditional stay accordingly lapsed upon the expiry of the fourteen days.
7. The Respondents thereafter commenced garnishee proceedings and on 29th May 2025 the Court made a garnishee order absolute, permitting the Respondents to realise the sum of Kshs. 30,000,000.
8. The Applicant, aggrieved by that turn of events, now seeks a review of the orders of 18th February 2025, citing the recovery of the security amount as a “change of circumstances” warranting review.
The Legal Framework
9. The jurisdiction to review a judgment or order is conferred by section 80 of the Civil Procedure Act (Cap. 21) and Order 45 of the Civil Procedure Rules . The jurisdiction is exceptional in character and is not intended to serve as an alternative to an appeal.
10. Section 80 provides that a person aggrieved by a decree or order may apply for a review upon the following grounds: -
a) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the order was made;
b) Mistake or error apparent on the face of the record; or
c) Any other sufficient reason.
11. Order 45 rule 1 substantially reproduces those grounds and adds the requirement that the application be made without unreasonable delay.
Issues for determination
12. Having considered the Motion, the replying affidavit and the written submissions of both parties, I am of the view that the following issues arise for determination: -
i) Whether the Applicant has satisfied the threshold for review under section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules;
ii) Whether there has been a discovery of new and important matter within the meaning of the law;
iii) Whether there is an error apparent on the face of the record;
iv) Whether the alleged “change of circumstances” arising from the garnishee proceedings constitutes “any other sufficient reason” for review;
v) Whether the Applicant’s failure to comply with the conditional stay order disentitles it to equitable relief;
vi) Whether the pendency of Civil Appeal No. 207 of 2025 bars this Court from exercising its review jurisdiction;
vii) Whether the application amounts to an abuse of the process of the Court; and
viii) Who should bear the costs of the application.
Analysis and Determination
(i) The threshold for review
13. The law on review is settled. In Jersey Evening Post Limited v Al Thani [2002] JLR the Court held: -
“A court is functus officio when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgement or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.”
14. Review is thus a narrow jurisdiction, confined to the correction of demonstrable error, the reception of evidence which was genuinely unavailable, or the redress of grave procedural irregularity. It is not a second avenue of appeal, nor is it a forum for a litigant dissatisfied with the consequences of his own omission.
(ii) Discovery of new and important matter
15. The Applicant anchors its application upon what it characterises as a “change of circumstances”, namely that the Respondents have already recovered the sum of Kshs. 30,000,000 through the garnishee proceedings. With respect, that is not a discovery of new and important matter within the meaning of Order 45.
16. The execution of the decree and the garnishee proceedings which followed were the natural, foreseeable and inevitable consequences of the Applicant’s own failure to comply with the conditional stay order of this Court. As deposed in the replying affidavit: -
“Execution did not occur in secrecy nor did it arise from any unknown fact concealed from the Applicant. Execution was the natural, foreseeable and inevitable consequence of the Applicant’s own failure to comply with this Court’s conditional stay orders.”
17. In Sow Chandra Kanta & Another v Sheik Habib (1975) AIR 1500 , the petitioner had been denied special leave to appeal by the Supreme Court and urged that Court to review its decision. In dismissing the application the Court held: -
“A review of a Judgement is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different counsel, of old and over-ruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient.”
18. The Applicant’s grievance is not that new facts have emerged, but that execution has lawfully proceeded following its own default. The recovery of the funds is a legal consequence of that non-compliance and not a discovery of evidence.
(iii) Error apparent on the face of the record
19. The Applicant does not identify any clerical, mathematical, typographical or patent legal error in the ruling of 18th February 2025. It complains rather that the condition requiring the deposit of Kshs. 30,000,000 has become “onerous” or “unjust” in the light of the garnishee proceedings.
20. As held in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR : -
“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 a 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 proceeded on an incorrect exposition of the law and misconstruing a statute or other provision of law cannot be a ground for review.”
21. There is no error apparent on the face of the ruling of 18th February 2025. The ruling is internally coherent, reasoned and legally sound. The Applicant’s dissatisfaction with the judicial exercise of discretion is not error.
(iv) “Any other sufficient reason”
22. The third limb of Order 45 rule 1 has been the subject of considerable judicial exposition. In Wangechi Kimita & Another v Mutahi Wakibiru (1982-88) 1 KAR 977 , Nyarangi JA held: -
“I see no reason why any other sufficient reason need be analogous with the other grounds in the Order because clearly S.80 of the Civil Procedure Act confers an unfettered right to apply for a review and so the words ‘for any other sufficient reason’ need not be analogous with the other grounds specified in the Order.”
23. Even upon that liberal construction, however, “sufficient reason” cannot embrace the consequences of a litigant’s own deliberate non-compliance. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR , the Court of Appeal observed: -
“The discovery of new and important matter or evidence or mistake or error apparent on the face of the record or for any other sufficient reason in rule 1 of Order 44 (now Order 45 in 2010 Civil Procedure Rules) relates to issues of facts which may emerge from evidence. The discovery does not relate or refer to issues of law. The exercise of due diligence referred to in rule 1 refers to discovery of facts but does not relate to ascertainment of existing law which the court is deemed to be alive to.”
24. The Applicant’s principal complaint is that the Respondents have already received the sum of Kshs. 30,000,000 awarded by the Court and that requiring it to deposit a like amount as security would amount to a double burden. That argument, with respect: -
a) ignores the true character of security. The order of 18th February 2025 directed security not as payment of the damages but as a condition for the discretionary grant of a stay of execution. The two are conceptually distinct;
b) overlooks that the Applicant elected not to comply. The Applicant accepted the conditional stay but failed to perform its condition, and it cannot now reverse that election by invoking the legal consequences of its own default; and
c) seeks to alter the Court’s exercise of discretion rather than to correct an error. Review does not serve as a forum for reconsidering the wisdom or propriety of a discretionary order after time has passed and circumstances have shifted.
(v) Failure to comply with the conditional stay
25. It is a fundamental principle of equity, as counsel for the Respondents correctly submitted, that he who comes to equity must come with clean hands.
26. The conditional stay order was unambiguous: the Applicant was to deposit Kshs. 30,000,000 within fourteen (14) days. The Applicant accepted that condition but did not comply. Paragraphs 8, 9 and 10 of the replying affidavit depose as follows: -
“The Honourable Court on 18th February 2025 issued an interim conditional stay of execution of the decree on condition that the Defendant deposits in court the decretal sum of Kshs. 30,000,000 within fourteen days as security from the date thereof. That the Defendant failed to comply with the terms of the said conditional temporary stay of execution and the same lapsed. That the order issued by the Honourable Court on 18th February 2025 was self-executory and upon the lapse of the period within which the order was to be complied with, the order naturally and procedurally took effect and has since been complied with.”
27. Once a litigant has failed to comply with an order of the Court, it is unconscionable for that litigant to return to the Court seeking to vary or review the order upon the pretext that execution has since occurred. The rule against a party benefiting from its own default is cardinal in equity.
(vi) The pending appeal
28. The Applicant has elected the appellate process. The Notice of Appeal was filed on 18th December 2024 and Civil Appeal No. 207 of 2025 remains pending before the Court of Appeal.
29. In Gerald Kithu Muchanje v Catherine Muthoni Ngare & Another [2020] KECA 511 (KLR) , the Court of Appeal held: -
“Under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, where a party opts to apply for review of a judgment and decree, such a party cannot after the review application is rejected exercise the option to appeal against the same judgment and decree that he sought to review. In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original Judgement. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somebody and it cannot be conducted on the basis of trial and error.”
30. That principle operates mutatis mutandis in the converse case. Once an appeal has been preferred, a party ought not simultaneously to invoke the review jurisdiction to challenge the same order. To permit that course would: -
a) create parallel proceedings upon the same decision;
b) enable forum shopping between the trial and the appellate courts;
c) undermine the finality of judicial determinations; and
d) occasion a waste of judicial resources.
31. The Applicant’s own admission that Civil Appeal No. 207 of 2025 is pending is, in my view, fatal to the present application. The Applicant must prosecute its remedy before the Court of Appeal rather than return to the trial court seeking a review of the same orders.
(vii) Abuse of the process of the Court
32. The Respondents correctly characterise this application as an attempt to achieve through review that which cannot be achieved through appeal, namely to challenge the exercise of discretion in imposing the security condition and to avoid the legal consequences of non-compliance.
33. In Swai v Kenya Breweries Limited [2014] KECA 883 (KLR) , the Court of Appeal observed: -
“…if parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are functus officio and have no appellate jurisdiction.”
34. This application bears several hallmarks of abuse: -
a) forum shopping, the Applicant pursuing an appeal while simultaneously seeking a review;
b) circumvention of the appellate procedure, the Applicant seeking to vary a discretionary order without meeting the appellate standard;
c) leveraging of its own non-compliance, the Applicant seeking to convert the consequences of its default into a ground for review; and
d) the prolongation of concluded litigation, more than a year having elapsed since the main judgment.
35. It is a principle as old as the jurisprudence itself that the courts will not lend their assistance to a litigant who abuses their process. Upon this ground alone the application would fall to be dismissed.
(viii) Costs
36. Costs are in the discretion of the Court under section 27 of the Civil Procedure Act and ordinarily follow the event. The Respondents have succeeded in resisting the application and have prayed for costs. I see no reason to depart from the ordinary rule.
Disposition
37. In the result, and for the reasons set out above, I make the following orders: -
i. The Application dated 23rd April 2026 be and is hereby dismissed.
ii. The Applicant shall bear the costs of the application.
Orders accordingly.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 17 TH DAY OF SEPTEMBER 2026.
E. K. WABWOTO
JUDGE
RULING CIVIL SUIT NO. 28 OF 20142