Mohamed v Musyoka & 2 others

The Applicant indicated that he led an application to strike out the appeal on that basis which application was dismissed in the ruling date dated 10th April 2026 in which he indicates the court failed to appreciate his supplementary adavit that spoke to the irregularity of the appeal despite being a decision rendered on the review application. It is on the basis of the ruling of 10th April 2026 that he seeks the review and setting aside of the said orders. 3. The Applicant led its replying adavit sworn on the 30th June 2026.He deponed that the Applicant was seeking to appeal the ruling disguised a s a review application as the Applicant had not indicated any of the conditions necessary for review as to be present being discovery of new information, error apparent on the face of record and any other sucient ground. 4. That the Applicant being dissatised with the ruling is not sucient ground to seek for a review and the issues raised in the supplementary adavit were issues that the court had already considered and hence the reasoning that the supplementary adavit was not mentioned in the ruling a ground for non-consideration was misconceived as the court was aware of the review application but went ahead to determine the appeal was rightfully before the court as a notice of withdrawal had been issued on the review application. 5. The application was canvassed by way of written submissions with the Applicant ling submissions dated 7th July 2026 whereas the Appellant/Respondent led submissions dated 30th June 2026. Applicant’s submissions 6. The Applicant relied on the provision of section 80 of the civil procedure Act and order 45(1) of the Civil Procedure Rules. His argument was premised on the fact that there was an error apparent on the face of record as the court failed to consider his supplementary adavit dated 20th February 2026 which adavit gave information that the review application in the lower court had been determined and a ruling given on the 10th November 2025.That being the case, then the appeal ought to have been struck out as the option of review was pursued by the Appellant and a decision was given in that eect. It was further submitted that this failure to consider the adavit meant the court arrived at a decision on an incomplete record by failing to consider material evidence properly before it. Counsel relied in the case of Lavington Security Limited -Vs- Waigi [2022] KEHC 2994 (KLR) and National Bank of Kenya Ltd. -Vs- Ndungu Njau [1997] Eklr. Respondent/Appellant’s submissions 7. Counsel reiterated contents of his replying adavit that the issues raised by the Applicant could not be addressed in a review application rather an appeal .That the court should not be called to evaluate evidence based on the fact that the Applicant feels that the evidence was not fully interrogated which ground does not raise any error apparent on the face of record which ought to be a very obvious mistake on the face of it which is not the case here as the court will be required to start interrogating the supplementary adavit and the lower court proceedings relying on the case of Nyamogo & Nyamogo Advocates -Vs- Kogo(2001)EA 173. 8. Counsel further argued that the court in making its decision was fully aware of the issues being raised in this application being that the legal eect of the notice of withdrawal was fully dealt with and the dissatisfaction of the Applicant with the reasoning does not automate a review of the application. That the issues raised are not capture under Order 45 Rule (1) of the Civil Procedure Rules hence the application is an abuse of the court process. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5659/eng@2026-09-24 2

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Analysis and Determination 9. Upon considering the Application, the replying adavit and the led submissions the only issues for determination is Whether the application for review and setting aside of the orders of 10th April 2026 is warranted. 10. I have noted the issue raised by the Applicant that there was review application in the lower court hence the appeal ought to be struck out was determined by the court in its ruling of 10th April 2026 at paragraph 6 where the court indicated that as long as the notice of withdrawal of the review application had been led, then the application for review became a nullity under Order 25 of the Civil Procedure Rules and that the appeal was rightfully before the court. 11. The lower court went ahead to give a decision on the review application which in my view did not interfere with the decision of the court that the review application was a nullity. A decision was rendered on an application that was a nullity which makes the said decision a nullity. These are the issues the Applicant is claiming are in the supporting adavit led on the 20th February 2026 which in my view were already addressed 12. On the merits of the Application, I have read Section 80 Civil Procedure Act and Order 45(1) Civil Procedure Rules on the applicable principles for review. These principles for review are that: “Any person considering himself aggrieved— 13. 14. 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 some mistake or error apparent on the face of the record, or for any other sucient 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.” Drawing from the above provisions, it is evident that the following are the instances in which a court can review a decision: a. 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 b. some mistake or error apparent on the face of the record, or c. any other sucient reason. From my careful reading of the application, the Supporting Adavit and submissions of the parties, it is clear that the Application rides on the element of ‘error apparent on the face of record’ In that regard,I make reference to the case of Ajit Kumar Rath -Vs- State of Orisa & Others, 9 Supreme Court Cases 596 at Page 608 where the Supreme Court of India pronounced itself in the manner hereunder: “The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5659/eng@2026-09-24 3

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of some mistake or error apparent on the face of the record or for any other sucient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. 15. In this matter, my understanding is that the Applicant is basing his argument on “error apparent on the face of record” on the argument that the learned Judge; in arriving at her decision did not take into account the contents of his supplementary adavit of 20th February 2026 and that the impugned ruling did not make specic reference to the said adavit hence failing to consider important evidence. 16. It is my considered view that the Applicant is purporting to re-open and re-argue the present suit and in so doing, he is essentially asking this court to re-examine and re-analyse the pleadings, material and evidence previously tendered and arrive at a conclusion that is supported by his arguments in this application. It is asking this Court to sit on appeal on a matter decided by a court of concurrent jurisdiction, which is against the applicable legal principles. 17. It is my nding, therefore, that the Applicant in this instance has not demonstrated that he deserves the orders for review he is seeking. He has failed to meet the threshold set under Section 80 Civil procedure Act and Order 45, Rule 1 Civil Procedure Rules, warranting or necessitating a review of the aforesaid ruling Final Disposition Consequently, I nd that the Notice of Motion application dated 16th April 2026 lacks merit and the same is hereby dismissed with costs to the Respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 24TH DAY OF SEPTEMBER 2026. MOHAMMED N. KULLOW JUDGE Ruling delivered in the presence of: Mr. Kipkorir .......... for the Applicant Ms. Masomi ............ for the Respondent N/A ................ for the Interested Parties Ms. Mwangi ........... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5659/eng@2026-09-24 4

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