Hassan Andale v National Bank of Kenya [2021] KEELRC 1190 (KLR)

The court applied the three conditions in Order 42 Rule 6(2): absence of inordinate delay, demonstration of substantial loss and offer of security. Judgment was delivered on 18th December 2018, the review ruling on 14th June 2019, but the stay application was only filed on 14th July 2020 after proclamation of the applicant's assets, prompted by execution rather than the intention to appeal. The delay was inordinate and unexplained, and the intended appeal, being only against dismissal of review on the ground that submissions were not considered, was not shown to be arguable.

The Applicant's review application was premised on the court not considering its submissions, which were not on record at the time of the judgment. Relying on Ken-Knit (K) Ltd v Ezekiel Ombasa Ombui, the court held that submissions are a summary of evidence and facts but not evidence themselves, and failure to consider them cannot of itself constitute a mistake or error on the face of the record. Since the judgment was arrived at after consideration of the evidence and law on record, the decree holder should not be denied the fruits of the judgment.

The court noted that although the stay application failed, there was an admitted arithmetical error on the decree. The Claimant/Decree Holder had conceded that Kshs.1,727,743.20 was what was due. The court held the error could be corrected by the parties or the Deputy Registrar and, balancing the parties' positions, ordered payment of the admitted amount pending correction, with auctioneer's fees to be agreed or taxed on the corrected decretal sum.