Ireri Karingi v Ngugi Mwangi T/A Ngugi Mwangi & Co. Advocates

way of viva voce evidence and that the Defendant and any other witness he may call be permitted to testify orally in court and to be cross-examined thereon. e. The costs of this application be provided for. 2. The application is based on the grounds appearing on its face together with the supporting affidavit of Ngugi Mwangi Advocate sworn on even date. THE APPLICANT’S CASE 3. The deponent averred that the directions for disposal of the suit by way of affidavit evidence were issued ex parte on 16 th June 2026, without the matter having undergone the requisite process of compliance with the directions as required by law. 4. He contended that the Defendant intends to give oral evidence in support of his defence and to be crossexamined. He further contended that the dispute between the parties raises contested issues of fact that cannot be fairly resolved on affidavit evidence. He asserted that viva voce evidence will afford the court the opportunity to test the credibility and veracity of the parties and their witnesses, and will lead to the effective disposal of the matter. 5. He contended that the Defendant will suffer irreparable prejudice if judgment is entered against him without being ELCL OS NO. E044 OF 2025 2

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afforded an opportunity to be heard and to give oral evidence. THE PLAINTIFF/RESPONDENT’S CASE 6. The Plaintiff opposed the application through the replying affidavit dated 31st July 2026. 7. He averred that this matter came up for mention on 1 st October 2025; the Applicant was granted 21 days to file their responses, which they failed to do. On 6 th March, the Court directed his advocate to issue a Mention Notice and directions to the Applicant and reserved a ruling date for 9 th April 2026. He asserted that the Defendant's advocate failed to comply. 8. That on 30th April 2026, the Court directed his advocate to issue a mention notice and directions for filing written submissions in respect of the originating summons. He explained that the notice was served on the Applicant on 7 th May 2026, but the Applicant again failed to comply despite service. 9. He contended that, against this background of repeated service and non-compliance, the Court directed that the suit proceed on affidavit evidence. He explained that he had filed the affidavit of service in all these proceedings, which the Applicant has not disputed. He stated that the matter was reserved for judgment on 31st July 2026, and that the Applicant filed the present application only on 17 th July, a month after the directions. ELCL OS NO. E044 OF 2025 3

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10. He argued that the Applicant has not provided any exceptional reason, excuse, or justification for his repeated failure to attend court or to comply with the numerous orders, notices, and directions. 11. He asserted that he would suffer substantial prejudice if the judgment were arrested, stayed or further delayed, as he is bound by contractual timelines under his sale agreement with the purchaser, which are overdue due to the Applicant’s conduct. He further asserted that he has already received the entire purchase price from the purchaser, and that his continued inability to deliver the original title document and complete the sale exposes him to the risk of being in breach of the sale agreement, to demands for a refund of the purchase price together with damages, and to litigation by the purchaser arising from the Applicant’s continued withholding of his title documents. 12. He argued that the Applicant has not filed a bill of costs in respect of the sum he claims, which he disputes as unlawful, exorbitant and not computed in accordance with the Advocates Remuneration Order. He maintained that he is ready to deposit an equivalent sum in Court, or to secure it by an irrevocable undertaking through his advocate, pending the filing and taxation of the bill of costs. According to him, this would protect any legitimate claim to fees the defendant may have while preventing further prejudice to him. He argued that the present application is brought in bad faith ELCL OS NO. E044 OF 2025 4

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and is intended to delay the judgment and reopen a process in which the Applicant participated without objection. ANALYSIS AND DETERMINATION 13. Having considered the application and the response thereto, the only issue for determination is whether the directions issued on 16th June 2026 should be reviewed, varied or set aside. 14. Although the application is brought under Sections 1A, 1B and 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, the substantive relief sought is review. Accordingly, the relevant provisions are Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. 15. The law governing review applications is set out in Section 80 of the Civil Procedure Act and in Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Rules provides that: “Any person who considers himself aggrieved— a. by a decree or order from which an 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.” ELCL OS NO. E044 OF 2025 5

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16. Order 45 Rule 1 of the Civil Procedure Rules, 2010 provides that: “1. (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 on 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.” 17. In Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR, the Court of Appeal held that: “In the High Court, both the Civil Procedure Act in Section 80 and the Civil Procedure ELCL OS NO. E044 OF 2025 6

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Rules in Order 45 Rule 1 confer on the court power to review. Rule 1 of Order 45 shows the circumstances in which such review would be considered, ranging from discovery of a new and important matter or a mistake or error apparent on the face of the record or any other sufficient reason, but Section 80 gives the High Court greater amplitude for review.” 18. Similarly, in Republic v Public Procurement Administrative Review Board & 2 Others [2018] eKLR, the Court held that: “Section 80 gives the power of review, and Order 45 sets out the rules. These rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review.” 19. In the matter at hand, the Applicant has not demonstrated the discovery of any new and important matter or evidence. Similarly, the Applicant has not identified any error apparent on the face of the record. 20. The Court is also required to consider whether there are sufficient grounds to review the Court’s directions. In Attorney General v The Law Society of Kenya & another, sufficient cause was defined as: “sufficient cause or good cause in law means;_......the burden placed on the litigant (usually by the court rule or order to show ELCL OS NO. E044 OF 2025 7

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why a request should be granted or an action excused” According to blacks law dictionary, sufficient cause must be rational, plausible logical, convincing reasonable and truthful. It should not be an explanation that leaves doubts in a judges mind. The explanation should not leave unexplained gaps in the sequence of events.” 21. Discussing what constitutes sufficient cause for the purposes of review, the Court of Appeal in The Official Receiver and Liquidator v Freight Forwarders Kenya Ltd (2000) eKLR stated that; “These words only mean that the reason must be one that is sufficient to the court to which the application for review is made and they cannot, without at times running counter to the interest of justice, be limited to the discovery of new and important matter or evidence or occurring of an error apparent on the face of the record.” 22. In the present case, the issue is whether the Applicant has established sufficient cause for the Court to interfere with the directions already issued, following his failure to attend court and to comply with previous directions. 23. The Applicant contends that the Court should direct that the matter proceeds by way of viva voce evidence, as he intends ELCL OS NO. E044 OF 2025 8

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to testify and call witnesses. He further contends that the dispute involves contested questions of fact. 24. The Court rejects the contention that the directions of 16 th June 2026 were made in circumstances where the Applicant was denied the opportunity to participate. The record shows that the Applicant was notified of the proceedings and had previously been required to attend court to take directions. The Applicant did not attend. The Applicant was thereafter served with further notices and afforded opportunities to comply with the court's directions. He again failed to do so. 25. The Plaintiff’s evidence of service and non-compliance has not been disputed. The Applicant has not explained why he failed to attend court when the matter was listed for directions, or why, after being served with the subsequent notices, he failed to comply with the Court’s directions. On the basis of the foregoing, I find that the Applicant’s absence was not due to a lack of notice or a denial of an opportunity to be heard. 26. The right to a fair hearing is guaranteed under Article 50 of the Constitution. This right does not relieve a litigant of the obligation to participate diligently in proceedings and to comply with lawful orders and directions of the Court. 27. The Court is mindful that proceedings commenced by Originating Summons may, where circumstances so require, proceed on oral evidence. The Applicant’s assertion that he intends to give oral evidence and call witnesses does not, without more, provide sufficient grounds for review. In my ELCL OS NO. E044 OF 2025 9

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view, the Applicant has not demonstrated sufficient cause to warrant a review of the Court’s directions. 28. Finally, the Applicant must show that the application was made without unreasonable delay. The directions sought to be reviewed were issued on 16th June 2026. The Applicant filed the instant application on 17th June 2026, after the matter had progressed towards judgment. The Applicant has not explained why he did not seek the Court's intervention promptly upon becoming aware of the directions, if he genuinely considered them irregular or prejudicial to his right to a fair hearing. 29. In light of the foregoing, I find that the Applicant has not established any of the grounds on which the Court may review the directions. 30. The upshot of the foregoing is that the application lacks merit and is hereby dismissed with costs. RULING DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS THIS 18TH DAY OF SEPTEMBER, 2025. ……………………………………. HON. T. MURIGI JUDGE IN THE PRESENCE OF: Otieno for the Plaintiff Vena – Court Assistant ELCL OS NO. E044 OF 2025 10

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