Phylis Khasungu & Patrick Magona (suing As Personal Representatives of The Estate of Kephar Aswani Nabule Deceased) v Charles Odhiambo & 1 other

face of the record”. The error in the respondents’ view was that the trial court erred by giving an award beyond the statutory limit of the indemnity by respondents’ insurers Madison Insurance Company Limited. The respondent urged the trial court to review the award given to align with what the insurer had paid pointing out that it would be exposed to harsh economic realities if they were forced to pay the extra amount of Kshs.1,209,266.6/-. 5. The appellant opposed the application for review stating that the judgment entered was regular and proper. That there was no inadvertence, excusable mistake or error in the award given adding that no appeal had been preferred. In her view, the judgment debtor was only out to frustrate or delay her fruits of judgment. 6. The trial court in its ruling dated 26/2/2024 upon hearing both sides found that the decretal sum awarded was “way above the statutory limit of indemnity payable by the insurer hence there was a mistake or apparent error on the face of record”. The trial court then reviewed the trial sum awarded to Kshs.3 Million all inclusive to align with what the insurer had paid. 7. The appellant felt aggrieved and filed this appeal raising the following grounds namely;i. That the learned magistrate erred both in law and fact by allowing the respondents’ application without considering the law. ii. That the trial magistrate erred by reviewing a judgment that had partially been settled without any contrary evidence from the 1st respondent. iii. That the trial magistrate erred by misinterpreting the provisions of section 5 of the Insurance (Motor Vehicle Third Party Basis) Act. iv. That the trial magistrate erred by finding that the maximum compensation of Kshs.3 Million payable and paid by the insurance company amounted to full and final settlement of the decretal sum. v. That the trial magistrate erred by finding that the appellant cannot execute for the balance of Kshs.1,892,627/- against the judgment debtor. vi. That the trial magistrate erred by allowing the application without considering the appellant’s submissions and authorities cited. vii. That the trial magistrate did not give basis for his ruling. viii. That the ruling was unfair, unjust and irregular. 8. In her written submissions dated 27/5/2025 done through learned counsel, the appellant submits that there was no sufficient reason to review the judgment and that the application for review was made after 1 year which to her amounted to unreasonable delay. 9. She further contends that review can only be sought where there is an error/mistake apparent on the face of the record which needs correction. It is submitted that there was no mistake or error or discovery of a new matter to warrant review that was made. She relies on the case of Otieno Ragot & Co v National Bank of Kenya Ltd (2020)eKLR where the court highlighted the main grounds considered in an application for review. 10. The appellant submits that she was right to execute for the balance against the respondent and relies on the case of APA Assurance Ltd v Thuo & Anor (suing as the administrator of the estate of Michael Thuo WAitiki (2024)eKLR where the court held that a court is not estopped from awarding a litigant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13327/eng@2025-09-29 2

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a sum in excess of statutory limit of indemnity by insurance companies and that the Act could not unsurp or limit judicial discretion. 11. She further submits that the respondent is responsible to pay any additional sum beyond the statutory limit payable by the insurer. She relies on Law Society of Kenya v Attorney General (2016)eKLR and CIC General Insurance Group Ltd v Gerald Ochoki (2020)eKLR. 12. The 1st respondent has opposed this appeal through written submission dated 24/6/25 by his counsel M/S Chebii Cherop Advocates. 13. The 1st respondent contends that the provisions of Order 45 Rule 1 Civil Procedure Rules grants the court discretionary powers to make orders that serve the ends of justice and prevent unfairness. 14. It is the 1st respondent’s case that the trial magistrate exercised his discretion appropriately by allowing the application. It is his view that the trial court carefully considered the evidence on record and the applicable law and that it emerged that there was an error on the face of the judgment which warranted correction. He submits that the trial magistrate was correct to review the judgment and denies that he fell into error. He supports the decision reached by the trial court stating that it was within the court’s jurisdiction and discretion. 15. This court has considered this appeal and the grounds advanced. I have also considered the response made by 1st respondent through written submissions by counsel. 16. This appeal raises one main issue which is whether the trial court exercised its discretion judiciously by reviewing its own judgment. The 1st respondent moved the trial court under Order 45 Rule 1 of the Civil Procedure Rules which as he correctly says grants a court discretionary power to review a decree or an order. The exercise of discretion however is not open ended. It has guidelines well stipulated under section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act provides as follows: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. The provisions of Order 45 Rule 1 provides as follows: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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13327/eng@2025-09-29 3

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From the above, the following are the factors or guidelines for a Court to consider whether or not to grant review; i. Discovery of new and important facts/matter which after exercise of due diligence was not within the knowledge of the applicant. ii. The fact or evidence could not be produced at the time the order was made or passed. iii. A mistake or error on the face of record. iv. Any other sufficient cause. Apart from the above guidelines or requirements an application for review also must be made without unreasonable delay. 17. The above factors are the grounds for consideration by a court when determining whether or not to exercise its discretion in favour of an applicant in an application for review. 18. In this matter, the 1st respondent moved the trial court or review on grounds of error or mistake apparent on the face of record. Looking at the amended application dated 22/9/23, the “error” pointed out by the 1st respondent was that the amount awarded in total exceeded 3 Million which was the statutory limit the insurer could indemnify the respondents being their insurer. 19. The 1st respondent’s grievance was not that the amount was excessive or undeserved that is why no appeal was preferred but the grievance was that the amount exceeded what the insurer could pay. 20. The grievance in my view raised a fundamental question, which is whether a court when assessing damages payable in running down matter is limited by the provisions of section 5(b) of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405. The answer to that question is in the negative. As held in the APA Insurance Ltd’s case (supra) a court retains power and discretion to make fair awards and is not estopped to give awards in excess of Kshs.3 Million. In the event of an award exceeding Ksh.3 Million the amount in excess of 3 Million is recoverable from the insured. 21. This court finds that the trial court fell into error by finding that there was a mistake or error in the award he had given. This is because for one, he in effect sat on appeal on his own judgment and secondly, there was no error or mistake demonstrated by the respondents. The trial court in reviewing the judgment acted beyond the scope of Order 45 of the Civil Procedure Rules and fell into error as a result. 22. As I have found out above, the 1st respondent was not aggrieved by the amount awarded per se otherwise he could have pointed out the specific award given that he felt was excessive given that the judgment from the trial court was given under different heads to wit pain and suffering, loss of expectation of life, loss of dependency and special damages. The amount in total was Kshs.4,262,425/plus costs and interests. 23. The trial court also fell into error by rounding off the total amount to Kshs.3 Million without specifying the specific reduction of quantum affected by the reduction. The question lingering is did he review the award on pain and suffering, or loss of dependency or special damages? And if so what was the rationale? The basis for review was therefore lacking because the trial magistrate failed to state the principle or the law giving him the latitude to review the quantum made in his initial judgment. 24. This court finds that only a court exercising appellate jurisdiction could interfere with the award if the respondent felt aggrieved by the award made. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13327/eng@2025-09-29 4

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25. The appellant in this appeal has pointed out that the application for review was made after I year and therefore breached the rules but I have checked at the record and find that the appellant never raised any issue regarding unreasonable delay in the application. The appellant having failed to raise the issue, in the lower court cannot raise it here because the issue was not subject or an issue under consideration by the trial court. 26. However having found that there was no basis for the trial court to exercise its discretion under Order 45 Rule 1 of the Civil Procedure Rules, I find merit in this appeal and I hereby allow it by setting aside the ruling dated 26/2/2024. In its place, the amended Notice of Motion dated 22/9/23 is dismissed with costs. The appellant will also get costs of this appeal. DELIVERED, DATED AND SIGNED AT KITALE THIS 29TH DAY OF SEPTEMBER, 2025. HON JUSTICE R.K. LIMO KITALE HIGH COURT Judgment delivered in open court In the presence of Appellant in person 1st Respondent in person No appearance for both counsels on record Duke – Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/13327/eng@2025-09-29 5

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