Introduction
1. On 11th March 2024, the applicants filed a notice of motion application dated 6th March, 2024 seeking leave to appeal out of time against the whole judgment of Hon. Edwin Mulochi SRM delivered on 30th January, 2024 in Kabarnet SPM ELC Suit No. 22 of 2019; that the Memorandum of Appeal annexed be deemed as duly filed and that costs be provided for.
2. The court delivered a ruling on 11th May, 2024 for the application dated 6th March, 2024. In dismissing the application, the court stated;
“I have perused the court record and noted that there is no correspondence to or from the court other than the letter dated 5th March 2024 from Geoffrey Otieno Advocate requesting the Executive Officer Kabarnet Law Courts for certified copies of the typed proceedings, which letter was written two years after delivery of the judgment. No satisfactory explanation has been given for the delay of over two years and no good or sufficient cause has been shown. Equity aids the vigilant and not the indolent.
Consequently, I find the application without merit and I dismiss it with no orders on costs as it was undefended.’’
3. Dissatisfied with the ruling, the applicants filed a Notice of Appeal dated 5th June, 2024 against the decision. On 20th July 2024, the applicants filed a notice to withdraw the Notice of Appeal dated 20th July, 2024 and thereafter filed the instant application dated 22nd July 2024, seeking orders to review, vary or set aside the terms of the ruling delivered on 29th May, 2024. They also prayed for costs.
4. The application is premised on the grounds on its face and supporting and further affidavits of Magdalene Jeptumo Keitany sworn on 22nd July, 2024 and 24th September, 2024 respectively. She deposes that she filed a Notice of Appeal dated 5th June, 2024 which she withdrew on 20th July, 2024 before filing the instant application; that there is an error apparent on the face of the record in the ruling delivered on 29th May, 2024; that the reasons advanced by the court are not factual as judgment was delivered on 30th January 2024 and the application seeking extension of time to file the appeal filed on 11th March 2024 ; that based on the circumstances of the case, there is sufficient reason to review the order dismissing the application and substitute it with an order capturing the correct position.
5. The application is not opposed.
6. The application was canvassed by way of written submissions. In her submissions filed on 21st January 2025, the applicant gave a background that lead to filing of the application and identified the issue for determination to be whether her application has merit. She submitted that the delay in filing the appeal was only by 35 days and not 2 years as captured in the Court’s decision. She relied on Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and the decision in the case of National Bank of Kenya v Ndungu Njau, Civil Appeal No. 211 of 1996 eKLR, where the court of Appeal held that the error or omission must be self-evident and should not require an elaborate argument to be established. She further submitted that in this case, the error is so apparent that it ought to be reviewed in the interest of justice.
Analysis and determination
7. I have considered the application, the grounds, affidavits sworn in support and submissions and l find the sole issue for determination to be whether the applicant has made up a case for being granted the orders sought.
8. The power to review a decision is exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules.
Section 80 provides: -
“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 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 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 review of judgement to the court which passed the decree or made the order without unreasonable delay.”
9. An error apparent on the face of the record was defined in the case of Paul Mwaniki v The National Hospital Insurance Fund Board of Management (2020) eklr as follows;
“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…”
10. On whether there is an error apparent on the face of the record; the court record reveals a letter dated 5th March, 2024 requesting for typed copies of the proceedings. A Memorandum of Appeal is attached to the letter. The application seeking leave to appeal out of time was filed on 11th March 2024 while judgment by the trial court was delivered on 30th January, 2024. It is therefore true that there is an error in paragraph 7 of this court’s ruling delivered on 29th May, 2024 as the application was filed 39 calendar days after delivery of the judgment and not two years as stated.
11. Having found there is an error in this court’s ruling delivered on 29th May 2025, the court will proceed to consider the application on its merits to determine whether the applicant has shown good and sufficient cause to warrant the orders sought.
12. In the instant case, the applicant has explained the circumstances that led to delay in filing the appeal. She has stated that it took time for her to obtain a certified copy of the judgment and that by the time she gave instructions to her advocate to file the appeal, time had lapsed. Although there is no correspondence to and from the court other than the letter dated 5th March, 2024 from Geoffrey Otieno Advocate requesting the Executive Officer Kabarnet Law Courts for certified copies of the typed proceedings and there is no evidence to show that the applicant was not indolent and indeed followed up on the judgement with the registry, I am inclined to extend time and allow the applicant leave to file the appeal noting that the delay was by 39 days and therefore not inordinate.
13. I have noted that there is a Memorandum of Appeal on record which I hereby deem as duly filed upon payment of the requisite fees. Having found the applicant is entitled to pursue his appeal, I set aside the orders in the ruling delivered on 29th May 2024 and substitute those orders with the following orders;
1. Leave is hereby granted to the applicant to file an appeal out of time against the Judgment of Hon. Edwin Mulochi SRM, delivered on 30th January 2024 at Kabarnet in Kabarnet SPM ELC Suit No. 22 of 2019;
2. The Memorandum of appeal dated 1st March, 2024 is deemed as duly filed upon payment of the requisite fees.
3. A Record of Appeal to be filed in 21days
4. In default, the application will automatically stand dismissed.
14. Costs will be in the cause.
15. Orders accordingly.
Ruling dated, signed and delivered at Kabarnet this 19th day of February, 2024.
Ruling read and delivered electronically in the presence of:-
Ms. Temba holding brief for Mr. Otieno for the Applicant
Mr. Muraya for the Respondent
Court Asst.: lan