'1. Before this court is a notice of motion application dated 23rd September 2024, seeking the following orders:-
a) That pending the hearing and determination of this application inter-parties, this Honourable Court be pleased to grant a stay of the hearing of the Notice to Show Cause issued on 1st August 2024 or any further proceedings relating thereto;
b) That, in the alternative, this Honourable Court be pleased to direct that the Notice to Show Cause be heard and determined alongside this application;
c) That this Honourable Court be pleased to review, vary and set aside the maintenance orders given via Decree dated 1st December 2023;
d) That costs of this Application be provided for.
2. The application is premised on the supporting affidavit of the respondent/applicant herein, sworn on 23rd September 2024.
3. Vide the said affidavit, he averred that he provides for the minors diligently by paying school fees, monthly shopping, a monthly upkeep of Kes . 16000/-, and other necessities. That it had become strenuous for him to provide Kes.25000/- ordered by the court on 1st December 2023 and that the same is not sustainable as his salary alone is not enough to cater for all the needs of the children, as well as his own, and that there had been a threat to attach 1/3rd of his salary in execution of the court’s decree dated 1st December 2023.
4. He further averred that if the said maintenance orders are not reviewed, the same is likely to affect the best interest of the children, as his ability to provide will be compromised. He contended that at the time of the judgment, the appellant/respondent was not earning, and that she had since got employed and was now earning a monthly income of Kes.80,000/-. For the said reason, it would be prudent for her to assist in providing for the minors.
5. In response, the respondent filed a replying affidavit sworn on 4th October 2024. She averred that the applicant’s contribution is insufficient, as the children’s needs continue to increase with their growth, and that the applicant is irregular in making his contributions. Due to economic inflation, she has been forced to take loans to cater to the basic needs of her children. She stated that she covers most of the children''s expenses.
6. She termed the application an abuse of court process as it was filed as an afterthought after the applicant was served with warrants of execution of the decree and notice to show cause. The application was filed 9 months after the court''s decree, with no explanation for the delay. She urged the court to dismiss the application with costs.
7. When the matter came up for hearing, counsel for the applicant, Ms Oluoch-Wambi, reiterated the applicant’s position in his affidavit and stated that there was a change in his financial circumstances since the initial orders were issued. For this reason, the applicant wishes to adjust his obligations to manageable limits. She urged that the applicant has serious loan obligations, which are a burden to him. He also lamented that the recent changes to the Kenyan tax regime had left him with reduced pay, as what was previously tax-exempt was now subject to taxation.
8. Counsel submitted that the applicant had shown a commitment to pay and to meet his obligations. She urged the court to consider the best interest doctrine. Ms Oluoch-Wambi, therefore, prayed that the application be allowed.
9. Mr Kabebe, for the respondent, on the other hand, urged the court not to interfere with the maintenance order as the applicant had not indicated the amount he wishes to pay and how he is going to pay the amount owing. He submitted that the applicant ought to have filed an affidavit of means.
10. Counsel submitted that the application does not meet the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and urged the court to dismiss the same and allow the Notice to Show Cause.
11. Counsel further submitted that the applicant cannot pursue review and appeal at the same time, as he has not withdrawn the notice of appeal filed.
12. In rejoinder, Ms Oluoch-Wambi submitted that the best interest of a child is paramount and the court should consider the same and adjust the maintenance order.
13. Review is provided for in Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, which provide that:-
Section 80:-
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 judgment 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
(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.
14. The court in the case of Smartkar Enterprises & another v Mary Kemunto Ogendo [2021] KEHC 7801 (KLR) stated:-
“It is now settled that for courts to review their decision, they must do so in compliance with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Mativo J in Nasibwa Wakenya Moses v University of Nairobi & Another [2019] eKLR observed that;
“Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. Put differently, the rules lay down the jurisdiction and scope of review. They limit it to 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 decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.
…..
19. A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.”
15. In the judgment I delivered on 1st December 2023, the court varied the amount payable as maintenance from Kes.20,000/- to Kes.25,000/-.
16. The application dated 23rd September 2024, seeks to vary that judgment. It is apparent that what is sought is for the respondent to continue paying Kes.16,000/- as he has continued doing since the judgment was delivered.
17. The respondent was dissatisfied with the judgment of this court and filed a Notice of Appeal. That Notice of Appeal has not been withdrawn. In my view, a party cannot simultaneously apply for review and appeal. Further Order 45 Rule 1 and Section 80 of the Civil Procedure Act are very clear on this.
18. I agree with the counsel for the appellant/respondent that the respondent applicant ought to have filed an affidavit of means so that the court could assess his ability. It is he who seeks to have the court''s orders reviewed. Having not provided the said documents, this court is unable to tell whether the amounts ordered as payable are unreasonable or not.
19. As children grow older, their demands will naturally grow. I do not see how varying the orders I made on 1st December 2024 will be in the best interest of the children herein.
20. In the circumstances, I dismiss the application dated 23rd September 2024. Each party shall bear his or her own costs.
21. Orders accordingly.
Dated and signed at Mombasa, the 11th day of December 2024. Delivered virtually through Microsoft TEAMS.
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a) That pending the hearing and determination of this application inter-parties, this Honourable Court be pleased to grant a stay of the hearing of the Notice to Show Cause issued on 1st August 2024 or any further proceedings relating thereto;
b) That, in the alternative, this Honourable Court be pleased to direct that the Notice to Show Cause be heard and determined alongside this application;
c) That this Honourable Court be pleased to review, vary and set aside the maintenance orders given via Decree dated 1st December 2023;
d) That costs of this Application be provided for.
2. The application is premised on the supporting affidavit of the respondent/applicant herein, sworn on 23rd September 2024.
3. Vide the said affidavit, he averred that he provides for the minors diligently by paying school fees, monthly shopping, a monthly upkeep of Kes . 16000/-, and other necessities. That it had become strenuous for him to provide Kes.25000/- ordered by the court on 1st December 2023 and that the same is not sustainable as his salary alone is not enough to cater for all the needs of the children, as well as his own, and that there had been a threat to attach 1/3rd of his salary in execution of the court’s decree dated 1st December 2023.
4. He further averred that if the said maintenance orders are not reviewed, the same is likely to affect the best interest of the children, as his ability to provide will be compromised. He contended that at the time of the judgment, the appellant/respondent was not earning, and that she had since got employed and was now earning a monthly income of Kes.80,000/-. For the said reason, it would be prudent for her to assist in providing for the minors.
5. In response, the respondent filed a replying affidavit sworn on 4th October 2024. She averred that the applicant’s contribution is insufficient, as the children’s needs continue to increase with their growth, and that the applicant is irregular in making his contributions. Due to economic inflation, she has been forced to take loans to cater to the basic needs of her children. She stated that she covers most of the children''s expenses.
6. She termed the application an abuse of court process as it was filed as an afterthought after the applicant was served with warrants of execution of the decree and notice to show cause. The application was filed 9 months after the court''s decree, with no explanation for the delay. She urged the court to dismiss the application with costs.
7. When the matter came up for hearing, counsel for the applicant, Ms Oluoch-Wambi, reiterated the applicant’s position in his affidavit and stated that there was a change in his financial circumstances since the initial orders were issued. For this reason, the applicant wishes to adjust his obligations to manageable limits. She urged that the applicant has serious loan obligations, which are a burden to him. He also lamented that the recent changes to the Kenyan tax regime had left him with reduced pay, as what was previously tax-exempt was now subject to taxation.
8. Counsel submitted that the applicant had shown a commitment to pay and to meet his obligations. She urged the court to consider the best interest doctrine. Ms Oluoch-Wambi, therefore, prayed that the application be allowed.
9. Mr Kabebe, for the respondent, on the other hand, urged the court not to interfere with the maintenance order as the applicant had not indicated the amount he wishes to pay and how he is going to pay the amount owing. He submitted that the applicant ought to have filed an affidavit of means.
10. Counsel submitted that the application does not meet the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and urged the court to dismiss the same and allow the Notice to Show Cause.
11. Counsel further submitted that the applicant cannot pursue review and appeal at the same time, as he has not withdrawn the notice of appeal filed.
12. In rejoinder, Ms Oluoch-Wambi submitted that the best interest of a child is paramount and the court should consider the same and adjust the maintenance order.
13. Review is provided for in Section 80 of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules, which provide that:-
Section 80:-
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 judgment 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
(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.
14. The court in the case of Smartkar Enterprises & another v Mary Kemunto Ogendo [2021] KEHC 7801 (KLR) stated:-
“It is now settled that for courts to review their decision, they must do so in compliance with Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Mativo J in Nasibwa Wakenya Moses v University of Nairobi & Another [2019] eKLR observed that;
“Section 80 gives the power of review while Order 45 sets out the rules. The rules restrict the grounds for review. Put differently, the rules lay down the jurisdiction and scope of review. They limit it to 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 decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without un reasonable delay.
…..
19. A review is permissible on the grounds of discovery by the applicant of some new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree or order was passed. The underlying object of this provision is neither to enable the court to write a second Judgment nor to give a second innings to the party who has lost the case because of his negligence or indifference. Therefore, a party seeking a review must show that there was no remiss on his part in adducing all possible evidence at the trial.”
15. In the judgment I delivered on 1st December 2023, the court varied the amount payable as maintenance from Kes.20,000/- to Kes.25,000/-.
16. The application dated 23rd September 2024, seeks to vary that judgment. It is apparent that what is sought is for the respondent to continue paying Kes.16,000/- as he has continued doing since the judgment was delivered.
17. The respondent was dissatisfied with the judgment of this court and filed a Notice of Appeal. That Notice of Appeal has not been withdrawn. In my view, a party cannot simultaneously apply for review and appeal. Further Order 45 Rule 1 and Section 80 of the Civil Procedure Act are very clear on this.
18. I agree with the counsel for the appellant/respondent that the respondent applicant ought to have filed an affidavit of means so that the court could assess his ability. It is he who seeks to have the court''s orders reviewed. Having not provided the said documents, this court is unable to tell whether the amounts ordered as payable are unreasonable or not.
19. As children grow older, their demands will naturally grow. I do not see how varying the orders I made on 1st December 2024 will be in the best interest of the children herein.
20. In the circumstances, I dismiss the application dated 23rd September 2024. Each party shall bear his or her own costs.
21. Orders accordingly.
Dated and signed at Mombasa, the 11th day of December 2024. Delivered virtually through Microsoft TEAMS.
'