Omwanza Ombati T/A Nchogu, Omwanza & Nyasimi Advocates v Hon Didmus Wekesa Barasa

d. That pending the hearing and determination of this application, the Honourable Court be pleased to review and set aside the ruling and orders issued by the Honourable Lady Justice Mong’are on 6th December 2024. e. That pending the hearing and determination of this application, the Honourable Court be pleased to review and set aside the ruling and orders issued by the Honourable Lady Justice Mongare on 6th December 2024. f. That costs of this application be provided for. 3. The application is supported by the grounds set out on its face and the supporting affidavit of Didmus Wekesa Barasa Mutua sworn on 17th February 2025. The application is opposed and the Plaintiff filed its grounds of opposition dated 5th March 2025 and replying affidavit sworn by Omwanza Ombati on 12th June 2025. The court directed parties to file written submissions but as at the writing ruling only the Plaintiff/Respondent had filed his written submissions dated 12th June 2025. The Defendant/ Applicant did not file any submissions to the application. 4. The court notes that the present application seeks to have this court review its ruling of 6th December 2025. From the onset and pursuant to Order 45 Rule 1 an application for review is premised on very narrow grounds. That is for a court to review its own ruling, there must an error apparent on the face of the record or the party seeking to have the ruling reviewed must demonstrate to the court that there is discovery of new and material facts that were not within its knowledge at the time the ruling was made and had those facts been present, the court would have ruled differently. 5. Order 45 Rule 1 of the Civil Procedure Rules provides as follows:“ Order 45 – Review; 1. Application for review of decree or order [Order 45, rule 1](1) (2) 6. 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. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” I have considered the application by the Defendant and the supporting affidavit by Hon. Didmus Wekesa Baraza and I have not seen any demonstration that the impugned ruling contains an error apparent on the face of the record nor has the deponent produced before this court new and important https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12482/eng@2025-09-01 2

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facts that were not in his possession at the time of the hearing of the application from whence the ruling was derived. What I note from the supporting affidavit is an averment that he has good defence to the main suit that has raised triable issues and that by this ruling, the court has closed the case without affording him an opportunity to be heard or to put forth his defence to the suit. 7. As stated earlier, the grounds upon which this court can review its own ruling are as set out under order 45 of the Civil Procedure Rules. Where a party is dissatisfied with a decision of a court in any matter, the right procedure is to prefer an appeal to the appellate court and have the matter determined at that level. The Applicant has by his Notice of Appeal filed on 24th January 2025, indicated that he wishes to appeal the decision of 6th December 2024 to the Court of Appeal. The best place therefore to seek orders to stay the execution of this courts ruling is before the said court as the orders sought in the present application, if granted, will amount to this court sitting on appeal on its own decision. 8. In sum, the court is satisfied that the present application is without merit. The same is dismissed with costs awarded to the Plaintiff/Respondent. The said costs are assessed at Kshs.30,000/=. It is so ordered. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 1ST DAY OF SEPTEMBER 2025 J.W.W. MONGARE JUDGE In The Presence Of Ms. Chelagat for the Plaintiff/Respondent. N/A for the Defendant/Applicant. Amos- Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12482/eng@2025-09-01 3

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