Africa China Motors Group Limited v P.n Mashru Limited

6. The parties were directed to file submissions in respect to both applications. Both parties complied by filing their rival submissions. 7. After the date of Ruling was given, the Applicant again filed a Notice of Motion dated 25/11/2025 seeking to have the Judgment of this court dated 15/03/2024 set aside, reviewed and/ or varied on grounds that the Applicant has now established new facts and evidence that were not in its custody before the delivery of the Judgment. The documents in issue are receipts and warranty related to the suit. Analysis and Determination 8. I have carefully considered the applications, the responses, the submissions, the authorities cited as well as the law and the only issue for determination is whether applications are merited. Corollary to this is the issue of costs. 9. To start with, this court shall determine the latest application dated 25/11/2025. Though directions had not been issued on the same, considering that the application had been served and a Replying Affidavit filed, nothing stops this court from considering the same in limine. The application seeks to have the judgment of the court datedb15/03/2024. 10. The Jurisdiction of this Court to grant review is well set out in the law. Section 80 of the Civil Procedure Act states that: “ Any person who considers himself aggrieved— 11. (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.” Order 45 Rule 1 of the Civil Procedure Rules provides for Review and it states as follows: “ (1) (2) 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19485/eng@2025-12-18 2

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appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review.” 12. In reference to the reasoning of Kuloba J (as he then was) in Lakesteel Supplies vs. Dr. Badia and Anor Kisumu HCCC No. 191 of 1994 he stated as follows; “ The exercise of review entails a judicial re-examination, that is to say, a reconsideration, and a second view or examination, and a consideration for purposes of correction of a decree or order on a former occasion. And one procures such examination and correction, alteration or reversal of a former position for any of the reasons set out above. The court of review has only a limited jurisdiction circumscribed by the definitive limits fixed by the language used in Order 45 rule 1, of the Civil Procedure Rules. A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected, but lies only for patent error. It can only lie if one of the grounds is shown, one cannot elaborately go into evidence again and then reverse the decree or order as that would be acting without jurisdiction, and to be sitting in appeal. The object is not to enable a judge to rewrite a second judgement or ruling because the first one is wrong…On an application for review, the court is to see whether any evident error or omission needs correction or is otherwise a requisite for ends of justice. The power, which inheres in every court of plenary jurisdiction, is exercised to prevent miscarriage of justice or to correct grave and palpable errors. It is a discretionary power. In the present application it has not been said or even suggested that after the passing of the order sought to be reviewed, there is a discovery of new and important matter of evidence which, after the exercise of due diligence, was not within the applicant’s knowledge or could not be produced by him at the time when the ruling was made.” 12. From the provisions of Order 45 (1) (b) of the Civil Procedure Rules, it must be shown that; a. There was an error or omission on the part of the court that needs correction b. If there was a discovery of new and important matter discovered after the order sought to be reviewed. 12. From the application and the supporting affidavit, it is stated there was discovery of new material and evidence that was not in the custody of the Plaintiff by the time the Judgment of the court was delivered. I have perused through the documents in question. Most if not all of the documents bears the letter head of the Plaintiff company, indicating that the Plaintiff was the author of the said documents. 13. It has not been explained as to where the documents were as at the time of the hearing that they could not be produced. The Plaintiff being deemed to be the author of the said documents, with no evidence to the contrary, it is also deemed that the Plaintiff was in possession of the said documents but failed to produce them at the opportune time. 14. Moreover, the application for review was filed over 20 months after the Judgment was delivered. The Plaintiff continued to take part in the subsequent court proceedings without the ‘discovery’ of the said evidence. The filing of this application is therefore an afterthought and the inordinate delay in its filing has not been justified. 15. I find that the Plaintiff has failed to meet the threshold for review under Order 45 (1) of the Civil Procedure Rules, and the application for review and stay orders fails. 16. In respect to the reference dated 25/09/2024, the Applicant seeks to have the Bill of Costs dated 15/07/2024 be taxed afresh before a new Taxing Master, as the Taxing Master did not give reasons for https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19485/eng@2025-12-18 3

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her ruling in accordance with Paragraph 11 of the Advocates Remuneration Order, after a Notice of Objection was filed. It is stated that the amounts claimed and awarded were exorbitant. The Applicant objected to the whole ruling. 17. I have perused through the Bill of Costs in issue. The Applicant save that there were no reasons given for the ruling, has not made a justification why all the items must be taxed afresh, which includes disbursements on filing fees. The Respondent states that the Bill of Costs was drawn as per Schedule 6 of the Advocates Remuneration Order, 2014. I do agree with the submissions of the Respondent that this court ought to be slow in interfering with the Ruling of the Taxation Master. 18. It has not been shown by the Applicant that there was misdirection on the part of the Taxing Master whose ruling would result in mis-justice to be suffered by the Applicant. (See Peter Muthoka & Another v Ochieng & 3 others [2019] eKLR). I find no ground capable of being redressed through a reference before this court. The application dated 25/09/2024 fails. 19. The Application dated10/10/2024 sought for stay of execution orders pending the hearing and determination of the application dated 25/09/2024. The application having been found to have no merits, this application stands moot and is hereby dismissed. 20. On costs, the same follows the event. However, it must be remembered that award of costs is discretionary and the court reserves the discretion whether to award the same or not. The suit was filed in year 2009. 16 years later, the parties are still litigating. Litigation must come to an end. This court exercises its discretion and orders that each party bears its own costs. 21. The upshot of the foregoing is that the court renders itself as hereunder: a. The applications dated 25/09/2024, 10/10/2024 and 25/11/202 lacks merit and are hereby dismissed. b. Each party to bear own costs. It is so ordered. RULING DELIVERED AT MOMBASA ON THIS 18TH DAY OF DECEMBER, 2025 THROUGH MICROSOFT TEAMS. HON. F. WANGARI JUDGE In the presence of; Mr. Ochieng Advocate h/b for Mr. Saad Advocate for the Plaintiff/ Applicant Mr. Oloo Advocate for the Defendant/ Respondent Ms. Salwa, Court Assistant NB: Typed Judgment released to the parties via CTS on 14th January, 2026. The delay was occasioned by the bereavement of the trial Judge. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19485/eng@2025-12-18 4

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