1. The Respondents instituted a suit against the appellant at the trial court for compensation following a road traffic accident involving the appellant's motor vehicle registration number KCG 512M.
2. The suit proceeded as undefended and at the execution stage, the appellant filed an application to set aside the said judgement and for leave to file defence.
3. Through its ruling delivered on 21st June 2024, the trial court conditionally allowed the said application.
4. An application to review of the said ruling was then filed. Through its Ruling delivered on 21st February 2025, the said application was dismissed provoking the present appeal.
5. Being dissatisfied with the ruling and order the appellant filed a Memorandum of Appeal dated 11.3.25 raising the following grounds:-
1) That the Learned Magistrate erred in law and in fact by misapprehending the facts and grounds of the application thus considering issues not raised by either of the parties such as that the appellant did not pay throw away costs and file a defence and the same was owing to a mistake of counsel.
2) That the Learned Magistrate erred in law and in fact by completely disregarding the main purpose and ground for review of the application thus condemned the appellant on facts that were not pleaded in the first place.
3) That the Learned Magistrate erred in law and in fact by disregarding the fact that the 2nd respondent had already filed a defence in court and admitted to the ownership of the accident motor vehicle yet still upheld the high costs of Kshs2,979,626.24 thus impeding the appellant's right to a fair trial.
4) That the Learned Magistrate erred in law and in fact by holding that the appellant came to equity with unclean hands and disregarding the fact that the appellant had already complied with all other orders including the deposit of throw away costs, filed the defence and joined the 2nd respondent thus sought a review of the specific order to deposit the sum of Kshs2,979,626.24.
5) That the Learned Magistrate erred in law and in fact in the exercise of his discretion by condemning the appellant to pay the security of costs amounting to Kshs 2,979,626.24 which has the ripple effect of impeding the appellant's access to justice.
6) That the Learned Magistrate misapprehended the guiding principles in requiring the deposit of the security of costs since the high amount of Kshs 2,979,626.24 has the effect of deterring the appellant from pursuing its claim against the respondents.
7) That the Learned Magistrate's erred in law and in fact by improperly exercising his discretion in condemning the appellant to pay the costs of Kshs 2,979,626.24 even after the 2nd respondent admitted to the ownership and possession of the alleged accident motor vehicle.
6. The appellant seeks the following orders:
1. That the Honorable Court be pleased to set aside the ruling delivered on the 21 st of February 2025 by Hon Musiega in Milimani CMCC E7051 OF 2020.
2. That this Honourable Court be pleased to allow the application for review dated the 21 st of August 2024.
3. That the Honourable court be pleased to place the file for the determination of the suit before another magistrate besides Hon. Musiega.
4. That the appellant be awarded costs of the appeal.
The appellant’s case;
7. The appellant submits that it operates as a financier of its members to acquire motor vehicles for running a matatu business within the Sacco.
8. The individual members are the owners of the motor vehicles, being in control and possession of the vehicles while servicing their respective loans with the appellant.
9. The 2nd respondent is the owner of the motor vehicle KCG 512M while the appellant is the financier in the acquisition of the motor vehicle.
10. It is the 1st respondents’ case that on the 12th of July 2020, the deceased was involved in a motor vehicle accident and blames the owner/driver of the motor vehicle registration number KCG 512M.
11. In the first instance, the 1st respondent sued the appellant for the accident and subsequently ex-parte judgment was entered against the appellant.
12. On the appellant’s application to set aside the ex-parte judgment, the Honourable Court on the 21st of June 2024 set aside the judgment on the conditions that;-
The applicant[appellant] be compelled to pay the respondent[1st respondent herein] do pay throw away costs of Kshs 30,000 within
30 days;
ii. The applicant[appellant] does file and serve its defence within 14 days;
iii. The applicant[appellant] does deposit half of the decretal sum in court as security within 30 days[Kshs2,979,626.24.On the same limb, the court ordered that the 2nd respondent be joined as the 2nd defendant.
13. The appellant complied with the orders to pay the throw away costs, to file and serve the defence and join the 2nd respondent as a defendant in the suit but sought the review of part of the ruling that the appellant does deposit half of the decretal sum within 30 days.
14. The 2nd Respondent appointed a firm of advocates and filed its defence admitting the ownership of the accident motor vehicle.
15. The application for review was on the ground that the appellant is only a financier and has now been condemned to pay the security of costs yet the 2nd respondent has admitted to the ownership of the motor vehicle.
16. The court in dismissing the application for review, held that;- ‘The applicant’s failure to meet these conditions due to the alleged mistake of counsel, without any steps taken to remedy the situation within a reasonable time, weakens his case. The principles of equity require that those who seek equity must do so with clean hands. In this instance, the applicant’s delay in fulfilling the court orders and the failure to demonstrate diligence in remedying the situation suggests a lack of good faith…’
17. The appellant challenges the ruling on the grounds set out in the memorandum of appeal and especially that the court considered issues not raised by either of the parties in its ruling.
18. Reliance is placed in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) that:-
‘And as is always the case, judicial discretion has to be exercised on the basis of the law and evidence. And as was stated by this Court in the case of Carl Ronning v Societe Navale Chargeurs DelmasVieljeux (The Francois Vieljeux) [1984] KLR 1 an appellate court may only interfere with the exercise of judicial discretion if satisfied either;
(a)The judge misdirected himself on law, or
(b)That he misapprehended the facts, or
(c)That he took account of considerations of which he should not have taken an account, or
(d)That he failed to take account of consideration of which he should have taken account, or
(e)That his decision, albeit discretionary one, was plainly wrong.’
19. It submits that in the impugned ruling at paragraph 3, the Court only considered two of its conditions issued on the setting aside the interlocutory judgment which are to pay the 30,000 throwaway costs and file and serve its defence.
20. The Honourable court conspicuously left out the condition requiring the appellant to deposit half the decretal sum in court.
21. At paragraph 7 of the ruling, the court cites that the appellant failed to meet the conditions due to an alleged mistake of counsel and that no steps were taken to remedy the situation within a reasonable time.
22. From the very onset, the appellant did not at any point plead that there was any mistake on the part of counsel.
23. Further, the appellant had already complied with the conditions as cited in paragraph 3 of the ruling, which facts the Trial court misapprehended.
24. The only outstanding condition was the deposit of half of the decretal sum, which is was the bone of contention in the very application for review, and that condition was at no point addressed in the impugned ruling.
25. The appellant sought review of part of the ruling on the deposit of half of the decretal sum in light of the fact that the 2nd respondent joined the suit and admitted to the ownership of the suit motor vehicle.
26. The appellant invites the court to partially review the court’s ruling that the appellant does deposit the sum of Kshs2,979,626.24 in court as security and as condition to set aside the interlocutory judgment.
27. It placed reliance on the Court’s decision in the case of Republic – Versus - Public Procurement Administrative Review Board & 2 others [2018] eKLR where the court stated that:-
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting 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 unreasonable delay.”
28. The particular reason is that the appellant is a Sacco and does own any assets thus is not in a position to raise the said moneys to meet the said order. Additionally, the 2nd respondent has already come on record and admitted to the ownership of the accident motor vehicle.
29. The 1st defendant does not stand to suffer any prejudice as the correct parties are now on record and the suit ought to proceed to its finality on merits.
The Respondent’s submissions;
30. Order 45(1) of 'the Civil Procedure Rules, 2010 sets out the requirements for an application for review as follows:
"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 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 judgment to the court which passed the decree or made the order without unreasonable delay".
31. It submits that from the above conditions, it is clear that the prayer for review in the application subject of this appeal was premised on the third condition.
32. It should not be lost that the underlying object of this provision is neither to enable the court to write a second judgment nor to give a second opportunity to the party who has lost the case because of his/her negligence or indifference.
33. The appellant's case that after exercise of due diligence, it was unable to meet the condition given by the trial court of depositing half the decretal sum in court as condition for setting aside the ex-parte judgement and decree.It submits that however no evidence was led in support of this contention for consideration by the trial court.
34. Nothing was tendered in evidence proving the financial standing of the appellant.
35. It is further submitted that the application for review of this condition was filed outside the period granted by the trial court.
36. Setting aside of an interlocutory judgement is discretionary. The same must balance the interest of both parties.
37. The application was clearly a disguised appeal and the trial court cannot be faulted for dismissing it.
38. Reliance is placed in the case of Francis N.joroqe v Stephen Maina Kamore [20181 KEHC 7520 (KLR) the appellate court while dismissing a similar appeal held as follows:
"Indeed, if parties were allowed to seek review of decisions on grounds that they are not in a position to carry out the orders sought to be reviewed, or rather that the orders are not convenient to them, then 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.
39. The Appellant herein has not demonstrated that he discovered new evidence which was not within his knowledge, neither that there was an error apparent on the record.
40. This is a court of justice but not court of convenience such that it has to consider the conflicting interest of the parties.
Analysis and determination:
41. Following are the issues for determination:
1) Whether the application has merit.
2) Who shall bear the costs.
Whether the application has merit.
42. In determining this issue this court is guided by the case of;Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR;
“5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
“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.”
6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
“(1) Any person considering himself aggrieved—
(c) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(d) 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.”
43. This court is satisfied that the 2nd Respondent admitted that it owns the motor vehicle.
44. The 2nd Respondent should bear the burden of depositing the amount that the court had ordered the appellant to deposit within 30 days.
45. In this court’s view this will amount to a situation that will give all the parties chance to ventilate its case against the right party.
46. The 1st Respondent will suffer no prejudice if the order is granted.
47. The trial court considered factors that had not been pleaded and in particular the mistake of counsel.
48. In the case of Arbuthnot Express Services Limited v Manchester Outfitters Suiting Division Limited & Another [1989] LLR 5515 (HCK) the court observed as follows:-
“The general principle of law is that as far as possible, the courts should lean in favour of the trial and determination of proceedings on merits. There are yet other principles viz that delay defeats equities and that he who comes to equity must come with clean hands. The court is duty bound to balance the application of all the principles by weighing one thing against another to see which way the balance tilts.”
49. The court does not see any unreasonable delay on the part of the appellant in filing the application.
50. It is this court’s view that The appellant has come to court in clean hands.
51. Section 3A of Civil Procedure Act Cap 21 Laws of Kenya empowers this Court to make such order as may be necessary for the ends of justice and this power has been donated by Article 159(2) of the Constitution of Kenya.
Determination;
52. This court finds that the appeal has merit and since the appellant has advanced a case demonstrating that there is sufficient reason for setting aside the order as prayed.
Costs:
53. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
54. Order;
1. The ruling delivered on the 21 st of February 2025 by Hon Musiega in Milimani CMCC E7051 OF 2020 is hereby set aside.
2. The application for review dated the 21 st of August 2024 is allowed.
3. The file shall be placed before another magistrate besides Hon. Musiega.
4. That the appellant is awarded costs of the appeal.
Dated, signed and delivered at Nairobi this 19th Day of January , 2026.
2. The suit proceeded as undefended and at the execution stage, the appellant filed an application to set aside the said judgement and for leave to file defence.
3. Through its ruling delivered on 21st June 2024, the trial court conditionally allowed the said application.
4. An application to review of the said ruling was then filed. Through its Ruling delivered on 21st February 2025, the said application was dismissed provoking the present appeal.
5. Being dissatisfied with the ruling and order the appellant filed a Memorandum of Appeal dated 11.3.25 raising the following grounds:-
1) That the Learned Magistrate erred in law and in fact by misapprehending the facts and grounds of the application thus considering issues not raised by either of the parties such as that the appellant did not pay throw away costs and file a defence and the same was owing to a mistake of counsel.
2) That the Learned Magistrate erred in law and in fact by completely disregarding the main purpose and ground for review of the application thus condemned the appellant on facts that were not pleaded in the first place.
3) That the Learned Magistrate erred in law and in fact by disregarding the fact that the 2nd respondent had already filed a defence in court and admitted to the ownership of the accident motor vehicle yet still upheld the high costs of Kshs2,979,626.24 thus impeding the appellant's right to a fair trial.
4) That the Learned Magistrate erred in law and in fact by holding that the appellant came to equity with unclean hands and disregarding the fact that the appellant had already complied with all other orders including the deposit of throw away costs, filed the defence and joined the 2nd respondent thus sought a review of the specific order to deposit the sum of Kshs2,979,626.24.
5) That the Learned Magistrate erred in law and in fact in the exercise of his discretion by condemning the appellant to pay the security of costs amounting to Kshs 2,979,626.24 which has the ripple effect of impeding the appellant's access to justice.
6) That the Learned Magistrate misapprehended the guiding principles in requiring the deposit of the security of costs since the high amount of Kshs 2,979,626.24 has the effect of deterring the appellant from pursuing its claim against the respondents.
7) That the Learned Magistrate's erred in law and in fact by improperly exercising his discretion in condemning the appellant to pay the costs of Kshs 2,979,626.24 even after the 2nd respondent admitted to the ownership and possession of the alleged accident motor vehicle.
6. The appellant seeks the following orders:
1. That the Honorable Court be pleased to set aside the ruling delivered on the 21 st of February 2025 by Hon Musiega in Milimani CMCC E7051 OF 2020.
2. That this Honourable Court be pleased to allow the application for review dated the 21 st of August 2024.
3. That the Honourable court be pleased to place the file for the determination of the suit before another magistrate besides Hon. Musiega.
4. That the appellant be awarded costs of the appeal.
The appellant’s case;
7. The appellant submits that it operates as a financier of its members to acquire motor vehicles for running a matatu business within the Sacco.
8. The individual members are the owners of the motor vehicles, being in control and possession of the vehicles while servicing their respective loans with the appellant.
9. The 2nd respondent is the owner of the motor vehicle KCG 512M while the appellant is the financier in the acquisition of the motor vehicle.
10. It is the 1st respondents’ case that on the 12th of July 2020, the deceased was involved in a motor vehicle accident and blames the owner/driver of the motor vehicle registration number KCG 512M.
11. In the first instance, the 1st respondent sued the appellant for the accident and subsequently ex-parte judgment was entered against the appellant.
12. On the appellant’s application to set aside the ex-parte judgment, the Honourable Court on the 21st of June 2024 set aside the judgment on the conditions that;-
The applicant[appellant] be compelled to pay the respondent[1st respondent herein] do pay throw away costs of Kshs 30,000 within
30 days;
ii. The applicant[appellant] does file and serve its defence within 14 days;
iii. The applicant[appellant] does deposit half of the decretal sum in court as security within 30 days[Kshs2,979,626.24.On the same limb, the court ordered that the 2nd respondent be joined as the 2nd defendant.
13. The appellant complied with the orders to pay the throw away costs, to file and serve the defence and join the 2nd respondent as a defendant in the suit but sought the review of part of the ruling that the appellant does deposit half of the decretal sum within 30 days.
14. The 2nd Respondent appointed a firm of advocates and filed its defence admitting the ownership of the accident motor vehicle.
15. The application for review was on the ground that the appellant is only a financier and has now been condemned to pay the security of costs yet the 2nd respondent has admitted to the ownership of the motor vehicle.
16. The court in dismissing the application for review, held that;- ‘The applicant’s failure to meet these conditions due to the alleged mistake of counsel, without any steps taken to remedy the situation within a reasonable time, weakens his case. The principles of equity require that those who seek equity must do so with clean hands. In this instance, the applicant’s delay in fulfilling the court orders and the failure to demonstrate diligence in remedying the situation suggests a lack of good faith…’
17. The appellant challenges the ruling on the grounds set out in the memorandum of appeal and especially that the court considered issues not raised by either of the parties in its ruling.
18. Reliance is placed in the case of Mrao Ltd v First American Bank of Kenya Ltd & 2 others [2003] KECA 175 (KLR) that:-
‘And as is always the case, judicial discretion has to be exercised on the basis of the law and evidence. And as was stated by this Court in the case of Carl Ronning v Societe Navale Chargeurs DelmasVieljeux (The Francois Vieljeux) [1984] KLR 1 an appellate court may only interfere with the exercise of judicial discretion if satisfied either;
(a)The judge misdirected himself on law, or
(b)That he misapprehended the facts, or
(c)That he took account of considerations of which he should not have taken an account, or
(d)That he failed to take account of consideration of which he should have taken account, or
(e)That his decision, albeit discretionary one, was plainly wrong.’
19. It submits that in the impugned ruling at paragraph 3, the Court only considered two of its conditions issued on the setting aside the interlocutory judgment which are to pay the 30,000 throwaway costs and file and serve its defence.
20. The Honourable court conspicuously left out the condition requiring the appellant to deposit half the decretal sum in court.
21. At paragraph 7 of the ruling, the court cites that the appellant failed to meet the conditions due to an alleged mistake of counsel and that no steps were taken to remedy the situation within a reasonable time.
22. From the very onset, the appellant did not at any point plead that there was any mistake on the part of counsel.
23. Further, the appellant had already complied with the conditions as cited in paragraph 3 of the ruling, which facts the Trial court misapprehended.
24. The only outstanding condition was the deposit of half of the decretal sum, which is was the bone of contention in the very application for review, and that condition was at no point addressed in the impugned ruling.
25. The appellant sought review of part of the ruling on the deposit of half of the decretal sum in light of the fact that the 2nd respondent joined the suit and admitted to the ownership of the suit motor vehicle.
26. The appellant invites the court to partially review the court’s ruling that the appellant does deposit the sum of Kshs2,979,626.24 in court as security and as condition to set aside the interlocutory judgment.
27. It placed reliance on the Court’s decision in the case of Republic – Versus - Public Procurement Administrative Review Board & 2 others [2018] eKLR where the court stated that:-
“Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting 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 unreasonable delay.”
28. The particular reason is that the appellant is a Sacco and does own any assets thus is not in a position to raise the said moneys to meet the said order. Additionally, the 2nd respondent has already come on record and admitted to the ownership of the accident motor vehicle.
29. The 1st defendant does not stand to suffer any prejudice as the correct parties are now on record and the suit ought to proceed to its finality on merits.
The Respondent’s submissions;
30. Order 45(1) of 'the Civil Procedure Rules, 2010 sets out the requirements for an application for review as follows:
"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 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 judgment to the court which passed the decree or made the order without unreasonable delay".
31. It submits that from the above conditions, it is clear that the prayer for review in the application subject of this appeal was premised on the third condition.
32. It should not be lost that the underlying object of this provision is neither to enable the court to write a second judgment nor to give a second opportunity to the party who has lost the case because of his/her negligence or indifference.
33. The appellant's case that after exercise of due diligence, it was unable to meet the condition given by the trial court of depositing half the decretal sum in court as condition for setting aside the ex-parte judgement and decree.It submits that however no evidence was led in support of this contention for consideration by the trial court.
34. Nothing was tendered in evidence proving the financial standing of the appellant.
35. It is further submitted that the application for review of this condition was filed outside the period granted by the trial court.
36. Setting aside of an interlocutory judgement is discretionary. The same must balance the interest of both parties.
37. The application was clearly a disguised appeal and the trial court cannot be faulted for dismissing it.
38. Reliance is placed in the case of Francis N.joroqe v Stephen Maina Kamore [20181 KEHC 7520 (KLR) the appellate court while dismissing a similar appeal held as follows:
"Indeed, if parties were allowed to seek review of decisions on grounds that they are not in a position to carry out the orders sought to be reviewed, or rather that the orders are not convenient to them, then 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.
39. The Appellant herein has not demonstrated that he discovered new evidence which was not within his knowledge, neither that there was an error apparent on the record.
40. This is a court of justice but not court of convenience such that it has to consider the conflicting interest of the parties.
Analysis and determination:
41. Following are the issues for determination:
1) Whether the application has merit.
2) Who shall bear the costs.
Whether the application has merit.
42. In determining this issue this court is guided by the case of;Republic v Jubilee Party & another Ex parte John Kieru Wambui & another [2021] eKLR;
“5. The applicable law for setting aside or review of a judgment or decree of the court is section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows:
“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.”
6. Order 45 Rule 1 of the Civil Procedure Rules elaborates on the grounds on which a judgment or decree can be set aside as follows:
“(1) Any person considering himself aggrieved—
(c) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or
(d) 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.”
43. This court is satisfied that the 2nd Respondent admitted that it owns the motor vehicle.
44. The 2nd Respondent should bear the burden of depositing the amount that the court had ordered the appellant to deposit within 30 days.
45. In this court’s view this will amount to a situation that will give all the parties chance to ventilate its case against the right party.
46. The 1st Respondent will suffer no prejudice if the order is granted.
47. The trial court considered factors that had not been pleaded and in particular the mistake of counsel.
48. In the case of Arbuthnot Express Services Limited v Manchester Outfitters Suiting Division Limited & Another [1989] LLR 5515 (HCK) the court observed as follows:-
“The general principle of law is that as far as possible, the courts should lean in favour of the trial and determination of proceedings on merits. There are yet other principles viz that delay defeats equities and that he who comes to equity must come with clean hands. The court is duty bound to balance the application of all the principles by weighing one thing against another to see which way the balance tilts.”
49. The court does not see any unreasonable delay on the part of the appellant in filing the application.
50. It is this court’s view that The appellant has come to court in clean hands.
51. Section 3A of Civil Procedure Act Cap 21 Laws of Kenya empowers this Court to make such order as may be necessary for the ends of justice and this power has been donated by Article 159(2) of the Constitution of Kenya.
Determination;
52. This court finds that the appeal has merit and since the appellant has advanced a case demonstrating that there is sufficient reason for setting aside the order as prayed.
Costs:
53. In Party of Independent Candidates of Kenya versus Mutula Kilonzo a 2 others HC EP No. 6 of 2013, the court stated as follows on the issue of costs:
"It is clear from the authorities that the fundamental principle underlying the award of costs is two-fold. In the first place, the award of costs is a matter in which the trial judge is given discretion But this is a judicial discretion and must be exercised upon grounds on which a reasonable man could come to the conclusion arrived at. In the second place the general rule that costs should be awarded to the successful party, is a rule which should not be departed from without the demonstration of good grounds for doing so. "
54. Order;
1. The ruling delivered on the 21 st of February 2025 by Hon Musiega in Milimani CMCC E7051 OF 2020 is hereby set aside.
2. The application for review dated the 21 st of August 2024 is allowed.
3. The file shall be placed before another magistrate besides Hon. Musiega.
4. That the appellant is awarded costs of the appeal.
Dated, signed and delivered at Nairobi this 19th Day of January , 2026.