Jackson Kiraithe v Thomas Kinoti John & 2 others; David Maingi (Proposed 3rd Interested Party/Applicant)

iii. That such further and other relief be granted to the third interested party as this court deems fit and expedient in the circumstances. 2. The subject application is premised on the grounds contained in the body thereof. The grounds are: The Applicant had filed a previous application seeking joinder as an interested party; the application was heard and disposed of; the court dismissed the application; the court placed undue emphasis on the issue of locus standi; the court misconceived the import of the Applicant ’s claim; the court misapprehended the Applicant ’s stake and Interests; the Applicant has since discovered new evidence /facts; and the Applicant shall stand to be prejudiced unless the orders sought are granted. 3. The application is supported by the affidavit of David Maingi. The affidavit is sworn on the 13.07.2026. In addition, the deponent has annexed assorted documents including: a copy of a list showing the membership/ex members of Nkado Farmers Cooperative Society, which is indicated to be defunct. 4. The Plaintiff/Respondent filed a replying affidavit sworn on the 07.09.2026. The Respondent has raised various issues. The assertions include: The application before the court is incompetent; the Applicant is improperly before the court; the Applicant is divested of locus standi [The Legal Capacity] to mount the subject application; the issues being raised by the Applicant were substantively dealt with vide the ruling of delivered on the 10.06.2026; the application is barred by the doctrine of res judicata; the Honourable Court is functus officio; and the application constitutes and amounts to an abuse of the due process of the court. Page 2 of 10

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5. The subject application came up for hearing today [21.09.2026] whereupon the parties agreed to canvass the application by way of oral submissions. Thereafter, the court issued directions and the application proceeded for hearing. 6. The Applicant adopted the grounds contained in the body of the application; the reiterated the contents of the supporting affidavit and canvassed four [4] key issues. The issues are: The Applicant has been authorized by the society/members of the society to mount the subject application; the Applicant is seized of the locus standi [The Legal Capacity] ; there is an error and mistake apparent on the face of the record; and the Applicant shall suffer prejudice/injustice, if the application is not allowed. 7. The Respondent adopted the contents of the replying affidavit sworn on the 07.09.2026. In addition, the Respondent contended thus: The application before the court is incompetent; the issues raised by the Applicant had been determined by the court; the application is barred by the doctrine of res judicata and the court is functus officio. 8. Having reviewed the subject application; the supporting affidavit thereto; the replying affidavit in opposition thereto; and upon taking into account the submissions on record; and bearing in mind the relevant principles of the law, two [2] key issue emerge for determination. The issues are: Whether the Applicant has established an error or mistake on the face of record; and Whether the court is Functus Officio or otherwise. Page 3 of 10

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9. Regarding the first issue, it important to highlight that any Applicant seeking to procure an order of review, on the basis of an error or mistake apparent on the face of record, is obligated to clearly define and isolate [sic] the error or mistake. The error or mistake must be isolated in the body of the Application. It must not be left to inference. 10. Further, and in addition, it is common ground that the error or mistake [if any] must be self - evident. It must be an error that is easily discernable, without undertaking microscopic [detailed] analysis or evaluation of the evidence or the law. 11.Put differently, an error or mistake apparent must be one that can be discerned and appreciated by the court at a glance. The error must stare the court in the eye. It must equally relate to an issue which does not admit of two or more perceptions or opinions. In other words, the error must be discernable while ‘running’. 12.In the case of NATIONAL BANK OF KENYA LIMITED Vs NDUNGU NJAU [1997] KECA 389 (KLR), the Court of Appeal highlighted the position thus: “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 sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the Page 4 of 10

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law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 13.Most recently, in the case of National Social Security Fund Board of Trustees v Kenya Tea Growers’ Association & 15 others [2026] KECA 1213 (KLR), the Court of Appeal revisited the scope of what constitutes an error or mistake apparent on the face of record. Further, the court also draw the dichotomy between an error apparent, on one hand and “a mere error”; or erroneous construction of the law. 14.The court stated thus: “In this regard, we bear in mind the definition of the term “error on the face of the record” by this Court in Muyobi vs Industrial and Commercial Development Corporation [2006] 1 EA 243 as follows:-“… In Nyamogo & Nyamogo -vs- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is real distinction between a mere erroneous decision and an error apparent on the face of record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions, can hardly be said to be an error Page 5 of 10

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apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal…” 15. Has the Applicant established an error or mistake apparent on the face of record? I have reviewed the grounds underpinning the application; and the supporting affidavit thereto. I have not discerned any error or mistake apparent on the face of the record. 16.I wish to repeat that the Applicant herein is purporting that same was authorized by the ex-members of the society to file the subject application. However, the court clearly pointed out that matters pertaining to the affairs of the society can only be propagated by the society itself [as a Legal Entity], or where the society is under liquidation, by the appointed liquidator. Any other Tom, Dick and Harry, by whatever name called, cannot purport to act for the society. 17.I clearly pointed out that the Applicant standi. Pertinently, the Applicant herein, did not have locus did not place before the court any document, which the court did not examine and which [sic] constitutes the error; or better still, new evidence. 18.Crucially, it is not enough to make allegations or assertions in the body of an application for review. It behooves the party seeking review, to substantiate or justify the assertions. Suffice it to state that the substantiation must meet the threshold of the law. [see Republic versus Page 6 of 10

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the Advocate Disciplinary Tribunal Exparte Apollo Mboya [2019] eKRL]. 19.In a nutshell, it is my finding and holding that the assertions of an error or mistake on the face of record, was neither established nor proven. The assertions remained just that – mere assertions. 20.I now wish to turn to the second issue. The second issue relates to whether the court is functus officio. I beg to reiterate that the issues which have been captured in the body of the supporting affidavit, replicate the issues that were canvassed before the court vide the application date the 07.05.2026. Suffice it to state that the court considered all the issues, including, whether a person can be joined into a matter, as an interested party for purposes of [sic] executing the decree. 21.The ruling of the court delivered on the 10.06.2026 was comprehensive and elaborate. The impugned ruling determined the thematic issues that were raised by the Applicant herein. 22.Assuming the Court was wrong, which is acceptable under our scheme of Law, then it behooved the Applicant to prefer an appeal to the court of appeal. Importantly, the Applicant cannot re-visit the same issues and seek to have a second bite on the cherry. 23.To my mind, the subject application is prohibited by the doctrine of functus officio. Simply put, this court has firmly spoken about the fate of the Applicant herein; and the court cannot re-visit the decision, which Page 7 of 10

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was rendered on merits; and upon consideration of the issue[s] that were raised. 24.In the case of Telkom Kenya Ltd v Ochanda (Suing on His Own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Ltd) [2014] KECA 600 (KLR, the Court of Appeal highlighted the scope of functus officio. 25. The court stated thus: “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling or adjudication must be taken to a higher court if that right is available.” 26.In my humble view, the issues being raised by the Applicant herein, were dealt with conclusively and with finality. Consequently, the current application does not lie. Conclusion: 27.The Applicant herein has re-visited the issues which had been dealt and determined with finality. The Applicant may not be happy with the outcome, which is acceptable in our adversarial system. However, the Applicant must be told that the only recourse [if any] was to prefer an appeal; and not to revisit the same subject matter, before the same Court. Page 8 of 10

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28.It suffices to state that vide the subject application, the Applicant is seeking to invite the court to “sit on an appeal” on its own decision. Such invitation is antithetical to the rule of law. It is frowned upon by the principles of justice. It is unacceptable. 29.Consequently, and in the premises, there is no gainsaying that the subject application is not only premature; misconceived, but same is equally an abuse of the due process of the court. 30.Simply put, the application, ought not to have been brought in the first place. Final orders: 31.In the upshot, the final orders that commend themselves to the court are: i. The Application be and is hereby dismissed. ii. Costs of the application be and are hereby awarded to the Plaintiff/Respondents. iii. The costs in terms of clause [ii] shall be agreed upon and in default be taxed in the usual manner. 32.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU ON 21ST DAY OF SEPTEMBER, 2026 OGUTTU MBOYA; FCIArb; CPM [MTI-EA]. JUDGE. Page 9 of 10

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In the presence of : Court Assistant: Zakayo. Daniel Maingi- The Applicant in person. Jackson Kiraithe- The Plaintiff/ Respondent in person. N/A for the Defendant. N/A for the First and Second Interested Parties. Page 10 of 10

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