xREPUBLIC OF KENYA
IN THE HIGH COURT AT NYERI
CIVIL DIVISION
CIVIL APPEAL NO. 15 OF 2020
SUSAN WANJIRU WARUHIU .........................................APPELLANT/RESPONDENT
VERSUS
ROSE WANJIRU alias ROSE WANJIRU WARUA ...............RESPONDENT/APPLICANT
RULING
1. The application before this court is the Notice of Motion application dated 17th October 2024 filed under certificate of urgency and brought pursuant to provisions of Section 1A, 1B, 3, 3B, 80 and 63(e) of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The application seeks for orders that:
a) Spent
b) Spent
c) THAT the honourable court be pleased to review and/or correct its judgment and decree issued on the 14th October 2024; and
d) THAT the costs of this Application be provided for.
2. The application is based on the grounds on the face of the application and -supported by the affidavit of Sandra Kosgey, the Respondent/Applicant. The grounds are that :-
a) on the 14th October 2024, the honourable court delivered its judgment in the matter.
b) parties were thereafter supplied with copies of the judgment for their further action.
c) there is error and mistake apparent on the face of record of the judgment, wherein the Honourable Judge erroneously declared that the Respondent had failed to file its submissions in respect to the appeal.
d) contrastingly the Applicant/Respondent had filed their submissions on 24th April 2023 and the same was received by the court by stamping on the top page.
e) further, the parties confirmed filing of submissions before Honourable Martin Mati on 24th April 2023.
f) there was an error and/or omission on the part of the court by ignoring and or overlooking the Applicant's submissions and as such the judgement should be reviewed.
g) there are sufficient reasons for the court to vary or review the decree and order herein.
h) there has been no unreasonable delay in making this application.
i) it is in the interest of justice and to uphold the constitutional guarantee of access to justice that the Application be allowed and the decree and order of this honourable court be reviewed and varied to reflect the correct position.
3. This application is opposed by the Appellant/Respondent who filed a Replying Affidavit sworn by Susan Wanjiru Waruhiu dated 6th November 2024 on the basis that: -
a) the application is frivolous, vexatious and an abuse of the court process and does not conform to the mandatory provisions of the law.
b) the application does not meet the threshold for granting the orders sought.
c) the Application is a ploy for the Respondent/Applicant to delay the realization of the fruits of the judgment by the Appellant/Respondent.
d) the court in its judgment confirms that there were no submissions by the Respondent/Applicant on the court file nor on the Court Tracking System.
e) the Respondent/Applicant does not indicate the method of filing used to file the submissions if physically, there should have been a copy left with the court and if through email, they should have provided a print out of the email.
f) if indeed the submissions were filed physically, the Respondent/Applicant failed to leave a copy of the submissions at the court registry and her mistake should not be used to inconvenience the Appellant/Respondent.
g) failure to consider submissions is not an error apparent on the face of the record and submissions are not evidence hence not fatal to a party's case.
h) the court while arriving at its decision relied on relevant case law, reconsidered the evidence and assessed a fresh it in order to make its own decision.
i) the court further relied on the Respondent/App1icant's submissions in the trial court and considered that the case laws relied on had a higher sum than was awarded by the trial court and the decisions were made 6 years ago.
j) parties are bound by their pleadings and the Respondent/Applicant is bound by the submissions filed in the trial court.
k) owing to the foregoing we strongly believe that the court herein would have arrived at a similar decision whether or not the Respondent/Applicant's submissions were on record.
l) if the Respondent/App1icant is aggrieved by the judgment of the court then its best recourse is to appeal and not review the same.
m) the Respondent/Applicant has not demonstrated that there is a decree and certificate of costs obtained by the Appellant/Respondent nor has she shown that the process of execution has taken off and hence no need for stay of execution of the judgment or decree.
n) at best the application should be dismissed with costs.
Analysis & Determination
4. Parties were directed to canvass the application dated 17th October 2024 through written submissions. The Applicant’s submissions are dated 16th December, 2024 filed by the firm of Irungu Kangáta & Co. Advocates whilst the Respondent’s submissions are dated 15th January 2025 filed by the firm of Wagiita Theuri & Co. Advocates.
5. The Applicant herein seeks to review the judgement delivered by this court on 14th October 2024, on ground that her submissions dated 20th April 2023 and filed in court on 24th April 2023 were not considered when the court wrote the said judgment. A perusal of the court record shows that on 24th April 2023 when the matter was before Hon. Justice Martin Muya, parties confirmed filing of submissions and judgement was fixed for 21st September 2023. However, this matter was released to be dealt with during RRI and that is how it ended before me for mention on 7th June 2024 when again both parties counsel confirmed to have filed their respective submissions and judgement was fixed for 14th October 2024.
6. It appears the Applicant’/Respondent’s submissions were inadvertently, not placed in the court file and this explains why the judgement delivered on 14th October 2024 indicates that only the Appellant/Respondent’s had filed their submissions.
7. In light of the foregoing, the Applicant submitted that the court in failing to consider submissions which had already been filed had made an error apparent on the record worthy enough to warrant the review of its Judgement.
8. I have carefully considered the application, Supporting Affidavit, the Replying Affidavit, Further Affidavit and the written submissions filed by the Parties’ Counsel to the application. The only issue for determination is whether the Applicant/Respondent’s submissions purportedly filed in court on 24th April 2023 were in the court file at the time of writing the Judgment dated 14th October 2024 and if so, whether there was an error and or omission on the part of the court by ignoring and overlooking the Applicant’s submissions and as such the judgment should be reviewed.
9. I have also severally turned the court record, page by page and even invited the Deputy Registrar of the Machakos High Court my secretary Florence and the two Legal Researchers, Charity and Benneditte to assist me in combing through the file for the Applicant’s submission dated 20th April 2023 and filed in court on 24th April 2023 but similarly, they couldn’t find the said Applicant’s submissions. The said submissions are also missing in the Court Tracking system.
10. Clearly, the said Applicant’s submissions are not in this appeal file and were not there at the time of writing the judgment dated 14th October 2024 save for a copy of the same which is now annexed as “KS-2” to the supporting affidavit of Sandra Kosgey filed in support of the application.
11. Review is provided for under Order 45 Rule 1 of the Civil Procedure Rules:-
“45 (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 an 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.”
12. The foregoing provisions are based on Section 80 of the Civil Procedure Act which provides that:-
“any person who considers himself aggrieved: -
a. By a decree or order from which no 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.”
13. Therefore an Applicant seeking an order for review needs to satisfy the court with the following:-
a. There is a 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 or order was made.
b. There is some mistake or error apparent on the face of the record.
c. Or for any other sufficient reason.
14. I have taken the liberty to read through the said submissions which are annexed as “KS-2” to the supporting affidavit of Sandra Kosgey filed in support of the application to the application and the judgment subject to this review application.
15. Needless to say, this court would have not in the first place ignored that which was not available for consideration and the court cannot be faulted to have made an error on the face of the record by ignoring the Applicant’s submissions thus warranting review.
16. The court considered the record of appeal and all the issues canvassed in the written submissions by all parties as they were presented before the trial court. Therefore, even if this court were to rewrite the judgement in consideration of the submissions of the Respondent dated 20th April 2023 and filed in court on 24th April 2023 having considered the same points of law and facts as addressed in the said submissions, nothing would change.
17. In the premises, having found no plausible ground to review the judgment delivered on 14th October 2024, the order that commands itself to this court and which I hereby grant is that the Notice of Motion application dated 17th October 2024 is hereby dismissed with no orders as to costs.
18. Before I pen off, I am constrained to direct that both counsel for the Parties in the presence of the Deputy Registrar of Nyeri High Court do find time to peruse through the court file once it gets back to Nyeri to check whether in deed the submissions by the Applicant purportedly dated 20th April 2023 and filed in court on 24th April 2023 are on record herein as alleged in the application for review.
19. Orders accordingly.
RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 30TH APRIL 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH APRIL 2025
In the presence of :
Absent............................. for Applicant
Ms Kariuki........................ for Respondent
Milly Grace................ Court Assistan
IN THE HIGH COURT AT NYERI
CIVIL DIVISION
CIVIL APPEAL NO. 15 OF 2020
SUSAN WANJIRU WARUHIU .........................................APPELLANT/RESPONDENT
VERSUS
ROSE WANJIRU alias ROSE WANJIRU WARUA ...............RESPONDENT/APPLICANT
RULING
1. The application before this court is the Notice of Motion application dated 17th October 2024 filed under certificate of urgency and brought pursuant to provisions of Section 1A, 1B, 3, 3B, 80 and 63(e) of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and all other enabling provisions of the law. The application seeks for orders that:
a) Spent
b) Spent
c) THAT the honourable court be pleased to review and/or correct its judgment and decree issued on the 14th October 2024; and
d) THAT the costs of this Application be provided for.
2. The application is based on the grounds on the face of the application and -supported by the affidavit of Sandra Kosgey, the Respondent/Applicant. The grounds are that :-
a) on the 14th October 2024, the honourable court delivered its judgment in the matter.
b) parties were thereafter supplied with copies of the judgment for their further action.
c) there is error and mistake apparent on the face of record of the judgment, wherein the Honourable Judge erroneously declared that the Respondent had failed to file its submissions in respect to the appeal.
d) contrastingly the Applicant/Respondent had filed their submissions on 24th April 2023 and the same was received by the court by stamping on the top page.
e) further, the parties confirmed filing of submissions before Honourable Martin Mati on 24th April 2023.
f) there was an error and/or omission on the part of the court by ignoring and or overlooking the Applicant's submissions and as such the judgement should be reviewed.
g) there are sufficient reasons for the court to vary or review the decree and order herein.
h) there has been no unreasonable delay in making this application.
i) it is in the interest of justice and to uphold the constitutional guarantee of access to justice that the Application be allowed and the decree and order of this honourable court be reviewed and varied to reflect the correct position.
3. This application is opposed by the Appellant/Respondent who filed a Replying Affidavit sworn by Susan Wanjiru Waruhiu dated 6th November 2024 on the basis that: -
a) the application is frivolous, vexatious and an abuse of the court process and does not conform to the mandatory provisions of the law.
b) the application does not meet the threshold for granting the orders sought.
c) the Application is a ploy for the Respondent/Applicant to delay the realization of the fruits of the judgment by the Appellant/Respondent.
d) the court in its judgment confirms that there were no submissions by the Respondent/Applicant on the court file nor on the Court Tracking System.
e) the Respondent/Applicant does not indicate the method of filing used to file the submissions if physically, there should have been a copy left with the court and if through email, they should have provided a print out of the email.
f) if indeed the submissions were filed physically, the Respondent/Applicant failed to leave a copy of the submissions at the court registry and her mistake should not be used to inconvenience the Appellant/Respondent.
g) failure to consider submissions is not an error apparent on the face of the record and submissions are not evidence hence not fatal to a party's case.
h) the court while arriving at its decision relied on relevant case law, reconsidered the evidence and assessed a fresh it in order to make its own decision.
i) the court further relied on the Respondent/App1icant's submissions in the trial court and considered that the case laws relied on had a higher sum than was awarded by the trial court and the decisions were made 6 years ago.
j) parties are bound by their pleadings and the Respondent/Applicant is bound by the submissions filed in the trial court.
k) owing to the foregoing we strongly believe that the court herein would have arrived at a similar decision whether or not the Respondent/Applicant's submissions were on record.
l) if the Respondent/App1icant is aggrieved by the judgment of the court then its best recourse is to appeal and not review the same.
m) the Respondent/Applicant has not demonstrated that there is a decree and certificate of costs obtained by the Appellant/Respondent nor has she shown that the process of execution has taken off and hence no need for stay of execution of the judgment or decree.
n) at best the application should be dismissed with costs.
Analysis & Determination
4. Parties were directed to canvass the application dated 17th October 2024 through written submissions. The Applicant’s submissions are dated 16th December, 2024 filed by the firm of Irungu Kangáta & Co. Advocates whilst the Respondent’s submissions are dated 15th January 2025 filed by the firm of Wagiita Theuri & Co. Advocates.
5. The Applicant herein seeks to review the judgement delivered by this court on 14th October 2024, on ground that her submissions dated 20th April 2023 and filed in court on 24th April 2023 were not considered when the court wrote the said judgment. A perusal of the court record shows that on 24th April 2023 when the matter was before Hon. Justice Martin Muya, parties confirmed filing of submissions and judgement was fixed for 21st September 2023. However, this matter was released to be dealt with during RRI and that is how it ended before me for mention on 7th June 2024 when again both parties counsel confirmed to have filed their respective submissions and judgement was fixed for 14th October 2024.
6. It appears the Applicant’/Respondent’s submissions were inadvertently, not placed in the court file and this explains why the judgement delivered on 14th October 2024 indicates that only the Appellant/Respondent’s had filed their submissions.
7. In light of the foregoing, the Applicant submitted that the court in failing to consider submissions which had already been filed had made an error apparent on the record worthy enough to warrant the review of its Judgement.
8. I have carefully considered the application, Supporting Affidavit, the Replying Affidavit, Further Affidavit and the written submissions filed by the Parties’ Counsel to the application. The only issue for determination is whether the Applicant/Respondent’s submissions purportedly filed in court on 24th April 2023 were in the court file at the time of writing the Judgment dated 14th October 2024 and if so, whether there was an error and or omission on the part of the court by ignoring and overlooking the Applicant’s submissions and as such the judgment should be reviewed.
9. I have also severally turned the court record, page by page and even invited the Deputy Registrar of the Machakos High Court my secretary Florence and the two Legal Researchers, Charity and Benneditte to assist me in combing through the file for the Applicant’s submission dated 20th April 2023 and filed in court on 24th April 2023 but similarly, they couldn’t find the said Applicant’s submissions. The said submissions are also missing in the Court Tracking system.
10. Clearly, the said Applicant’s submissions are not in this appeal file and were not there at the time of writing the judgment dated 14th October 2024 save for a copy of the same which is now annexed as “KS-2” to the supporting affidavit of Sandra Kosgey filed in support of the application.
11. Review is provided for under Order 45 Rule 1 of the Civil Procedure Rules:-
“45 (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 an 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.”
12. The foregoing provisions are based on Section 80 of the Civil Procedure Act which provides that:-
“any person who considers himself aggrieved: -
a. By a decree or order from which no 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.”
13. Therefore an Applicant seeking an order for review needs to satisfy the court with the following:-
a. There is a 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 or order was made.
b. There is some mistake or error apparent on the face of the record.
c. Or for any other sufficient reason.
14. I have taken the liberty to read through the said submissions which are annexed as “KS-2” to the supporting affidavit of Sandra Kosgey filed in support of the application to the application and the judgment subject to this review application.
15. Needless to say, this court would have not in the first place ignored that which was not available for consideration and the court cannot be faulted to have made an error on the face of the record by ignoring the Applicant’s submissions thus warranting review.
16. The court considered the record of appeal and all the issues canvassed in the written submissions by all parties as they were presented before the trial court. Therefore, even if this court were to rewrite the judgement in consideration of the submissions of the Respondent dated 20th April 2023 and filed in court on 24th April 2023 having considered the same points of law and facts as addressed in the said submissions, nothing would change.
17. In the premises, having found no plausible ground to review the judgment delivered on 14th October 2024, the order that commands itself to this court and which I hereby grant is that the Notice of Motion application dated 17th October 2024 is hereby dismissed with no orders as to costs.
18. Before I pen off, I am constrained to direct that both counsel for the Parties in the presence of the Deputy Registrar of Nyeri High Court do find time to peruse through the court file once it gets back to Nyeri to check whether in deed the submissions by the Applicant purportedly dated 20th April 2023 and filed in court on 24th April 2023 are on record herein as alleged in the application for review.
19. Orders accordingly.
RULING WRITTEN, SIGNED & DATED AT MACHAKOS THIS 30TH APRIL 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 30TH APRIL 2025
In the presence of :
Absent............................. for Applicant
Ms Kariuki........................ for Respondent
Milly Grace................ Court Assistan