Juja Coffee Exporters Limited v Grain Bulk Handlers Limited

PLAINTIFF/APPLICANT’S SUBMISSIONS 4. Mr. Gikandi, counsel for the Plainti/Applicant led submissions dated 30th January, 2026. Counsel submitted that the Notice of Motion application dated 13th November, 2025 is not an application for review but it is an application to set aside the judgment for breaching Articles 25 and 50 of the Constitution. 5. Counsel submitted that the judgment has dealt with a defence of limitation without pleading and without hearing the parties on it. It was counsel’s submission that if it is proven, then it would amount to a violation of the rules of natural justice. Reliance was placed on the following cases: Amani National Congress Party & 2 others vs Shimenga & another [2022] KECA 740 (KLR), William Kipkorir Arusei vs Nic Bank Plc & 3 others [2019] KEHC 6689 (KLR), Africa Centre For Open Governance & Peter Gastrow vs John Harun Mwau, Attorney General & Director of Public Prosecutions [2020] KECA 98 (KLR), James Kanyiita Nderitu & another vs Marios Philotas Ghikas & another [2016] KECA 470 (KLR), Accounting Ocer Kenya Ports Authority (Ex-Parte) vs Public Procurement Administrative Review Board & 3 others (Interested parties) [2019] KEHC 2229 (KLR) and Henry Njagi Muruariua vs A.O Okello, District Commissioner Mbeere District & another [2014] KECA 196 (KLR). 6. Counsel submitted that the Respondent has misunderstood the funtus-ocio doctrine. Counsel went on to submit that if the learned judge had invited parties to submit on the question of limitation, an overwhelming number of binding decisions would have been cited to him to show that unless the issue of limitation is pleaded in the defence, it cannot be determined by the court. Counsel asked the court to nd the application merited and allow the same with costs in the cause. DEFENDANT/RESPONDENT’S SUBMISSIONS 7. Mr. Busieka, counsel for the Defendant/Respondent led submissions dated 4th February, 2026. Counsel submitted that the subject motion is neither brought under the provisions of Order 45 of the Civil Procedure Rules nor Section 80 of the Civil Procedure Act which would give the court jurisdiction to entertain the same. Counsel submitted that the court being asked to revisit the issue of Limitation of Actions with a view of reaching a dierent determination would mean that the court is sitting on appeal on the judgment rendered which is legally untenable. 8. It was counsel’s submission that this court became functus-ocio and thus cannot entertain the instant motion. Counsel asked the court to nd that the application lacks merit and to dismiss it with costs. Reliance was placed on the following cases: Kabansora Millers Ltd vs Nyangena (2025) KEHC 4754 KLR and Iderus vs Hussein & 10 others (2025) KEELC 1180 (KLR). Analysis and Determination 9. The issue for determination is whether the applicant is entitled to the orders sought in it’s Notice of Motion application dated 13th November, 2025. 10. The application under consideration has been brought under provisions of Articles 25 and 50 of the Constitution, Sections 1A, 1B, 3 & 3A of the Civil Procedure Act Cap 21 and Order 51 of the Civil Procedure Rules, 2010. The Applicant in it’s submissions stated that the Notice of Motion application dated 13th November, 2025 is not an application for review but it is an application to set aside the judgment for breaching Articles 25 and 50 of the Constitution. It is a fact that the matter was heard inter-parties with both the Plainti and Defendant calling witnesses. This court subsequently rendered its judgment dated 22nd October, 2025. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18687/eng@2025-11-13 2

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11. This Applicant in its third sought order in the Notice of Motion application under consideration is asking the court upon granting the second order to deliver it’s judgment on the suit after considering the parties’ submissions and evidence on record. Clearly, the Applicant is asking this court to review it’s judgment. 12. It is the Applicant’s contention that the judgment has dealt with a defence of limitation without pleading and without hearing the parties on it. The Applicant’s director informed this court that even though an appeal is possible, the court has inherent power to set aside any judgment given without hearing the parties. 13. Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules restrict review to discovery of new and important matter or evidence that, after the exercise of due diligence, was not within one’s knowledge or could not be produced at the time when the decree was passed, or on account of some mistake or error apparent on the face of the record, or for any other sucient reason. 14. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal held that: “ A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident and should not require an elaborate argument to be established. It will not be a sucient ground for review that another Judge could have taken a dierent view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 15. In the case of Okero v Onchoke [2026] KECA 346 (KLR), the Court of Appeal stated as follows at paragraph 22: (22) 16. Applying this principle, if indeed the trial court failed to address the prayer for refund despite clear pleadings and evidence of payment, such omission would amount to an error apparent on the face of the record. However, the ELC found that the trial court had considered the issue of fraud and dismissed the claim for lack of proof. The claim for refund was on the basis that the respondent had fraudulently obtained the purchase price from the appellant. That being the case, we do not see how the question could have been separately addressed. After all the two issues were intertwined. The trial court could not have dealt with one without roping in the other. But even if the contrary was true, then such grievance required appellate intervention, not review. As the trial court correctly observed and upheld by the rst appellate court, reconsidering the issues in the manner suggested by the appellant in the application would have been tantamount to the trial court revisiting the evidence tendered re-evaluate it afresh so as to reach a dierent determination. That cannot be the jurisdiction of a court on an application for review. The two courts below were therefore correct in holding that the issue was t for appeal and not review. Accordingly, this ground fails.” [Emphasis mine]. The Supreme Court of Kenya in the case of Benjoh Amalgamated Ltd & Another v Kenya Commercial Bank Ltd [2014] eKLR, stated that review jurisdiction is not an avenue to re-litigate matters already determined. I nd that the Notice of Motion Application dated 13th November, 2025 lacks merit and is hereby dismissed with costs. Signed by/for: HON. JUSTICE ANTONY O. OMBWAYO https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18687/eng@2025-11-13 3

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THE JUDICIARY OF KENYA. MOMBASA ENVIRONMENT AND LAND COURT ENVIRONMENT AND LAND COURT DATE: 2026-03-06 15:40:46 https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18687/eng@2025-11-13 4

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