Harbinder Singh Bhogal (hereinafter referred to as the applicant) has come to this court seeking orders that this Honorable Court may be pleased to review the orders granted in the Ruling dated 17th July 2025 and that this Honorable Court be pleased to direct that the Plaintiff/Respondent procures and avails the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality Land Reference 12944 to the Applicant for forensic examination.
The applicant further seeks an order that in the event the Plaintiff/Respondent is completely unable to avail the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality. Land Reference 12944 then this Honorable Court be pleased to issue an order expunging this document from the court record completely and that this Honorable Court be pleased to prohibit parties in this suit from referring to this Deed of Declaration Trust dated 15th December 2017-Re: South East of Nakuru Municipality Land Reference 12944at any stage during trial.
The applicant further seeks an order that this Honorable Court be pleased to caution the Plaintiff/Respondent from introducing documents to this suit whose authenticity cannot be ascertained.
Lastly, that this Honorable Court be pleased to issue any such or further orders in respect of this application as may be necessary for the ends of justice to be met and towards protection of the dignity and authority of the court. The costs of this be application be provided for.
The application is based on grounds that this Honorable Court delivered a ruling on 17th July 2025 allowing the Applicant to present a copy of the Declaration of Trust dated 15th December 2017 for forensic examination. In an effort to comply with the court order, the Applicant presented a copy of the said Declaration of Trust to the Directorate of Criminal Investigations for examination.
The Applicant was informed by the Directorate of Criminal Investigations that the Original Deed of Declaration Trust dated 15th December 2017Re: South East of Nakuru Municipality Land Reference 12944 would be necessary for the forensic examination to be conducted and not a xerox copy.
The Applicant is unable to get the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality. Land Reference 12944 as he only learnt of its existence through the Plaintiff/Respondents application. The Plaintiff/Respondent is better placed to procure and produce the original Deed of Declaration Trust dated 15th December 2017 Re: South East of Nakuru Municipality Land Reference 12944as he introduced this document to this suit.
Unless the Court compels the Plaintiff/Respondent to avail the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality Land Reference 12944, it would be impossible for the Applicant to realize the orders of this court.
It is in the interests of justice that the orders sought be granted.
The Plaintiff/Respondent will not suffer any prejudice if the sought orders are granted.
The applications is opposed by the plaintiff on grounds that the Notice of Motion application dated 27th October 2025 is res judicata the issue of the production of the Declaration of Trust dated 15th December 2017 having been the subject of the Ruling delivered on 1 7th July 2025. The said Ruling of 17th July 2025 emanated from two applications dated 15th April 2025 seeking an order for the production by the Plaintiff of the original Declaration of Trust dated 15th December 2017 and for the same to be subjected to a forensic examination.
The second application dated 10th June 2025 sought an order prohibiting the production of the said Declaration of Trust dated 5th December 2017 in the absence of the original. In the Ruling of 17dl July 2025, the Honorable Court clearly declined to expunge the said Declaration of Trust as the same had not been produced at trial and the Honorable Court further declined to order the production of the original as the Plaintiff made it clear he did not have the same in his possession. There is nothing new that has been demonstrated in the present application to warrant the review of the said Ruling of 17th July 2025.
The respondent contends that the applicant does not qualify for review under any of the said grounds and therefore the application must fail in view of the issues dealt with in the Ruling of 1 7th July 2025 which are the same issues being raised in the present application.
The application has also been filed more than three months since the delivery of the said Ruling of 17th July 2025. There is no explanation for this inordinate delay and on this ground alone the application is liable to be dismissed.
I have considered the application and do find that the same is premised on Article 159 of the Constitution of Kenya 2010 that provides for the judicial authority, doing justice, promoting alternative dispute resolutions and avoiding procedural technicalities and protecting the constitutions purposes. I’m unable to discern the relevance of this Article.
The applicant further relies on the provisions of section 63 of the Civil Procedure Act Cap 21 laws of Kenya that provides for supplemental proceedings as follows:-
63. Supplemental proceedings
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed—
(a)issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to prison;
(b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;
(c)grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold;
(d)appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;(e)make such other interlocutory orders as may appear to the court to be just and convenient.
This section is not relevant to this application and therefore I do find that it is wrongly referred to. Order 40 deals with temporary injunctions and interlocutory orders which the applicant is not seeking. The applicant is seeking orders to review the ruling dated 17th July 2025. Though not cited at the head of the notice of motion, the same is presumed to have been brought under the provisions of section 80 of Civil Procedure Act Cap 21 Laws of Kenya and Order 45 of the Civil Procedure Rules 2010.
The power to review a judgment or order is governed by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. This power allows any person who considers themselves aggrieved by a decree or order to apply for a review, provided the application is made without unreasonable delay. The grounds for review are specific and limited: the discovery of new and important matter or evidence which, after due diligence, was not within the applicant’s knowledge or could not have been produced at the time the order was made; a mistake or error apparent on the face of the record; or for any other sufficient reason that is analogous to the specified grounds.
A review is not a substitute for an appeal and cannot be used merely for a fresh hearing, re-argument of evidence, or correction of an erroneous view of the law. The error must be patent, self-evident, and not require elaborate argument to establish. For instance, a mere misinterpretation of a statute or a disagreement with the court’s conclusion does not constitute a ground for review. The court retains discretion in determining whether a "sufficient reason" exists, and the burden lies on the applicant to demonstrate that the grounds meet the legal threshold.
The application before me does not raise any error apparent on the face of record. The application does not raise discovery of new and important matter or evidence, after due diligence. The application is brought after unreasonable delay of more than 2 months obviously to delay the hearing. The application is res-judicata as it raises the same issues that have been determined by this court on 17TH July 2025. The applicant appears to be on a fishing expedition. The application is dismissed with costs.
The applicant further seeks an order that in the event the Plaintiff/Respondent is completely unable to avail the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality. Land Reference 12944 then this Honorable Court be pleased to issue an order expunging this document from the court record completely and that this Honorable Court be pleased to prohibit parties in this suit from referring to this Deed of Declaration Trust dated 15th December 2017-Re: South East of Nakuru Municipality Land Reference 12944at any stage during trial.
The applicant further seeks an order that this Honorable Court be pleased to caution the Plaintiff/Respondent from introducing documents to this suit whose authenticity cannot be ascertained.
Lastly, that this Honorable Court be pleased to issue any such or further orders in respect of this application as may be necessary for the ends of justice to be met and towards protection of the dignity and authority of the court. The costs of this be application be provided for.
The application is based on grounds that this Honorable Court delivered a ruling on 17th July 2025 allowing the Applicant to present a copy of the Declaration of Trust dated 15th December 2017 for forensic examination. In an effort to comply with the court order, the Applicant presented a copy of the said Declaration of Trust to the Directorate of Criminal Investigations for examination.
The Applicant was informed by the Directorate of Criminal Investigations that the Original Deed of Declaration Trust dated 15th December 2017Re: South East of Nakuru Municipality Land Reference 12944 would be necessary for the forensic examination to be conducted and not a xerox copy.
The Applicant is unable to get the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality. Land Reference 12944 as he only learnt of its existence through the Plaintiff/Respondents application. The Plaintiff/Respondent is better placed to procure and produce the original Deed of Declaration Trust dated 15th December 2017 Re: South East of Nakuru Municipality Land Reference 12944as he introduced this document to this suit.
Unless the Court compels the Plaintiff/Respondent to avail the original Deed of Declaration Trust dated 15th December 2017- Re: South East of Nakuru Municipality Land Reference 12944, it would be impossible for the Applicant to realize the orders of this court.
It is in the interests of justice that the orders sought be granted.
The Plaintiff/Respondent will not suffer any prejudice if the sought orders are granted.
The applications is opposed by the plaintiff on grounds that the Notice of Motion application dated 27th October 2025 is res judicata the issue of the production of the Declaration of Trust dated 15th December 2017 having been the subject of the Ruling delivered on 1 7th July 2025. The said Ruling of 17th July 2025 emanated from two applications dated 15th April 2025 seeking an order for the production by the Plaintiff of the original Declaration of Trust dated 15th December 2017 and for the same to be subjected to a forensic examination.
The second application dated 10th June 2025 sought an order prohibiting the production of the said Declaration of Trust dated 5th December 2017 in the absence of the original. In the Ruling of 17dl July 2025, the Honorable Court clearly declined to expunge the said Declaration of Trust as the same had not been produced at trial and the Honorable Court further declined to order the production of the original as the Plaintiff made it clear he did not have the same in his possession. There is nothing new that has been demonstrated in the present application to warrant the review of the said Ruling of 17th July 2025.
The respondent contends that the applicant does not qualify for review under any of the said grounds and therefore the application must fail in view of the issues dealt with in the Ruling of 1 7th July 2025 which are the same issues being raised in the present application.
The application has also been filed more than three months since the delivery of the said Ruling of 17th July 2025. There is no explanation for this inordinate delay and on this ground alone the application is liable to be dismissed.
I have considered the application and do find that the same is premised on Article 159 of the Constitution of Kenya 2010 that provides for the judicial authority, doing justice, promoting alternative dispute resolutions and avoiding procedural technicalities and protecting the constitutions purposes. I’m unable to discern the relevance of this Article.
The applicant further relies on the provisions of section 63 of the Civil Procedure Act Cap 21 laws of Kenya that provides for supplemental proceedings as follows:-
63. Supplemental proceedings
In order to prevent the ends of justice from being defeated, the court may, if it is so prescribed—
(a)issue a warrant to arrest the defendant and bring him before the court to show cause why he should not give security for his appearance, and if he fails to comply with any order for security commit him to prison;
(b)direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;
(c)grant a temporary injunction and in case of disobedience commit the person guilty thereof to prison and order that his property be attached and sold;
(d)appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property;(e)make such other interlocutory orders as may appear to the court to be just and convenient.
This section is not relevant to this application and therefore I do find that it is wrongly referred to. Order 40 deals with temporary injunctions and interlocutory orders which the applicant is not seeking. The applicant is seeking orders to review the ruling dated 17th July 2025. Though not cited at the head of the notice of motion, the same is presumed to have been brought under the provisions of section 80 of Civil Procedure Act Cap 21 Laws of Kenya and Order 45 of the Civil Procedure Rules 2010.
The power to review a judgment or order is governed by Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. This power allows any person who considers themselves aggrieved by a decree or order to apply for a review, provided the application is made without unreasonable delay. The grounds for review are specific and limited: the discovery of new and important matter or evidence which, after due diligence, was not within the applicant’s knowledge or could not have been produced at the time the order was made; a mistake or error apparent on the face of the record; or for any other sufficient reason that is analogous to the specified grounds.
A review is not a substitute for an appeal and cannot be used merely for a fresh hearing, re-argument of evidence, or correction of an erroneous view of the law. The error must be patent, self-evident, and not require elaborate argument to establish. For instance, a mere misinterpretation of a statute or a disagreement with the court’s conclusion does not constitute a ground for review. The court retains discretion in determining whether a "sufficient reason" exists, and the burden lies on the applicant to demonstrate that the grounds meet the legal threshold.
The application before me does not raise any error apparent on the face of record. The application does not raise discovery of new and important matter or evidence, after due diligence. The application is brought after unreasonable delay of more than 2 months obviously to delay the hearing. The application is res-judicata as it raises the same issues that have been determined by this court on 17TH July 2025. The applicant appears to be on a fishing expedition. The application is dismissed with costs.