Nashon Kembero Mogonchi v Evans Ondieki Ombiro

2. The Honorable judge dealt extensively with a preliminary objection that the Respondent allegedly raised before the adjudicator yet such an objection was not raised. 3. The Honorable judge failed to determine whether or not the decision of the adjudicator in suit SCCC E087 of 2024 was unfair, unlawful, illegal, null and void due to the respondent non-compliance to section 25 of the Small Claims Court Act as well as Rule 9(1) of the Small Claims Rules having ignored and/or neglected to file response. 4. The Honorable Judge failed to determine whether or not the decision of the adjudicator in suit SCCC E087 of 2024 was unfair, unlawful, illegal, null and void in the view of the provisions of default judgement as provided under section 27 of the small claims court in lieu of response to a claim. 5. The Honorable Judge failed to determine whether or not the initiation of communication on the merits or procedures affecting the merits of the proceedings by the adjudicator in suit SCCC E087 of 2024 was ultra vires under regulation 6(3) of the Small Claims Court Code of Conduct for adjudicators (Legal Notice 144 of 2019) annulled the decision of the adjudicator. 6. The Hon Judge failed to determine whether or not the claim in suit SCCC EO87 of 2024 was not statute-barred under the provisions of section 27(1)(a) of the Limitation of Actions Act. 7. The Hon judge failed to determine whether or not the claim in suit SCCC E087 of 2024 was not statute-barred under the provisions of section 13(2) of the Small Claims Court Act. 8. The interest of justice dictates that the prayers sought be granted as the Appellant otherwise stands to suffer unfathomable prejudice and injustice. Issues for Determination: 3. The case before me emanates from a ruling of an Appeal dated 10th March 2025 delivered by Justice Magare Kizito. 4. I have carefully considered the application and the law. The following issue arises for determination: a. Whether the Applicants have raised sufficient grounds to warrant and order of review. Determination 5. I have considered the application; no reply was filed to the same. I find that the main issue for determination is whether the Applicant has made out a case for the review of the impugned judgment. a. The Court has jurisdiction to review its orders under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules, 2010. However, such power must be exercised within the framework of Section 80 Civil Procedure Act and Order 45 Rule 1. Section 80 provides that: 80. 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 that passed the decree or made the order, and the court may make such order thereon as it thinks fit.” Order 45 (1) Any person considering himself aggrieved:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19722/eng@2025-07-16 2

page 2 of 5

(2) 6. 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 the 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.” In Republic vs. Director of Public Prosecution ex-parte Josphat Sirma & 2 others [2017] eKLR, held thus: “ Order 45 Rule 1 (1) (b) Civil Procedure Rules sets out the parameters for an Application for Review. This is for purpose of avoiding a scenario where the Review Court turns into an Appeal Court over its own Ruling or Judgment. The Court may only hear a new and important matter or evidence that was not within the knowledge of an Applicant or could not be produced by him at the time when the Order was passed. 12. Secondly, the Court may only consider a mistake or error apparent on the face of the record. On this, the record must speak for itself or by itself without much explanation. 13. Thirdly, the court may consider any other sufficient reason. 1. In Mulla on Civil Procedure (Volume III Pages 3652-3653) he states that: “ The power of review can be exercised for the correction of a mistake and not to substitute a view. Such powers should be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated as an appeal in disguise. The mere possibility of two views on the subject is not ground for review. The review proceedings are not by way of an appeal and have to be strictly confined https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19722/eng@2025-07-16 3

page 3 of 5

to the scope and ambit of Order 47, rule 1, Code of Civil Procedure…The review court cannot sit as an Appellate Court. Mere possibility of two views is not a ground of review. Thus, re-assessing evidence and pointing out defects in the order of the court is not proper.” 2. In Ahmednasir Abdikadir & Co. Advocates vs. National Bank of Kenya Limited Nairobi (Milimani) HCCC No. 532 of 2004, Okwengu, J (as she then was) expressed herself as hereunder: “ In this case the court is being invited to review the order on the grounds that there is an error apparent on the face of the record or other sufficient reason the pleadings, in particular, the plaintiff’s reply to the amended defence in which the plaintiff is alleged to have conceded that the defendant’s fee policy was illegal and contra statute which was the basis of the Defendant’s application for striking out the plaint. It is the defendant’s contention that the plaintiff is bound by his pleadings and could not therefore depart from the same. It is my considered opinion that the pleadings went beyond the reply to the amended defence and to understand the matters which were in issue one has to look at the plaint vis-à-vis the amended defence and the reply to the amended defence. A careful reading of the ruling however, makes it clear that the court had the pleadingsin mind and moreover, there is no basis for the conclusion that the court would have arrived at any different decision. The court was simply interpreting the provisions of Section 36 and 45 of the Advocates Act as read with the Advocates Remuneration Order and it was not bound by any position taken by the parties. It may well be that the court was wrong in its interpretation or in the approach it took. However, that is not a matter that can be taken up on review as it is not an error apparent on the face of the record but ought to be subject of an appeal. Moreover, to invite the court to set aside the order of dismissal and substitute it with an order striking out the plaint and dismissing the plaintiff’s suit in effect is to invite the court to sit on appeal on its own ruling and make a complete turnaround, which is not within the purview of Order 44 of the Civil Procedure Rules.” 7. A clear reading of the above provisions shows that section 80 gives the power of review, while Order 45 sets out the rules. The rules sets the grounds for review. It is thus trite law that review is limited to the following grounds: - https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19722/eng@2025-07-16 4

page 4 of 5

8. a. Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; b. On account of some mistake or error apparent on the face of the record, or c. For any other sufficient reason and whatever the ground, there is a requirement that the application has to be made without unreasonable delay. The applicant herein listed grounds for review which indicates that he was aggrieved by the Judgment of the Learned Judge on points of law and fact. He now wants this court to correct the same and arrive at its own conclusion on the said grounds. The Judgment sought to be reviewed is of a Judge of concurrent jurisdiction. The application does not meet the threshold for review. In any event, it is trite law that jurisdiction is everything and without it the court must pen down as was held in the celebrated case of decision of Nyarangi, J.A. in The Owners of Motor Vessel Lilian “S” v. Caltex Oil Kenya Ltd. ]1989] KLR. The applicant has called upon to usurp the powers of the Court of Appeal and review the judgment. This court has no jurisdiction to sit on appeal from its own decision or that arising from a court of concurrent jurisdiction. The application is incompetent and an abuse of the process of this court. I proceed to dismiss it. T.A ODERA JUDGE 16.7.25 Delivered virtually via teams platform in the presence of: Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19722/eng@2025-07-16 5

page 5 of 5