Nyakora v Chege

3. The respondent in his replying affidavit, contends that the applicant has raised issues regarding the honorable court’s reasoning, interpretation and evidence of the valuation report. The applicant suggests that there are mistakes or errors apparent on the face of the court record, as those mistakes or errors are said to relate to the decision of the court on certain issues, that such erroneous view of evidence or of law is no ground for review in so far as it touches on the evaluation of evidence by the court. They assert that it entails a ground for an appeal but does not pass for a ground for review. They relied on article 165 of the Constitution in contending that if the applicant was not satisfied with the Judge’s decision, then he had a right to file an appeal and not seek a review. Issues for Determination 4. In consideration of the application, its supporting affidavit and the respondent replying affidavit, the following issue arises for determination; a. Whether the applicant has met the threshold for grant of a review. Analysis and Determination Whether the applicant has met the threshold for grant of a review 5. The power of review in the High Court is anchored in the Civil Procedure Act, Cap. 21 of the Laws of Kenya and the Civil Procedure Rules, 2010. 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. Order 45 Rule 1 of the Civil Procedure Rules, 2010 further provides for review in the following manner: Any person considering himself aggrieved— 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. The importance of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules was considered by the High Court in Miscellaneous Application 317 of 2018, Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR. Upon considering comparative jurisprudence, the Court crystallized the principles for consideration in reviewing its own decisions as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19782/eng@2025-07-04 2

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7. i. A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise. ii. The expression “any other sufficient reason” appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds. iii. An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80. iv. An erroneous order/decision cannot be corrected in the guise of exercise of power of review. v. A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/ judgment of a coordinate or larger Bench of the tribunal or of a superior court. vi. While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/ decision as vitiated by an error apparent. vii. Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/ tribunal earlier. viii. A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record. ix. Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1. x. The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. In the above case as noted, a mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the case of National Bank of Kenya ltd v Ndungu Njau civil appeal no 211 of 1996 it was held that: A review may be granted whenever the court considers that it is necessary to correct an apparent error on omission must be self-evident and should not require an elaborate argument to be established. Evidently, from the above it is clear that the error ought to be so glaring that there can possibly be no debate about it. An error which has to be established by a long drawn out process of reasoning on points where they maybe conceivably be two opinions can hardly be said to be an error apparent on the face of the record. It is thus my considered view that the applicant ought to have filed an appeal instead of the review application. Accordingly, the application dated 8.12.2023 lack merit and is thereby dismissed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19782/eng@2025-07-04 3

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8. In the present case, the applicant contends in his supporting affidavit that the court stated that the figures in the valuation report were not clear, which they consider an error apparent on the face of the record as the valuation report placed on record clearly and boldly enumerates the valuation figures together with the currency thereof. Section 99 of the of the Civil Procedure Act provides that; - 99. Amendment of judgments, decrees or orders Clerical or arithmetical mistakes in judgments, decrees or orders, or errors arising therein from any accidental slip or omission, may at any time be corrected by the court either of its own motion or on the application of any of the parties. It is thus clear that Section 99 CPA allows the court to correct clerical mistakes in its judgment or ruling under the “slip rule’’. I have perused the said judgment and I note that in other words the applicant has alleged misdirection of the Learned Judge on on the contents of the valuation report and not an arithmetic error. The applicant ought to have appealed in the Court of Appeal against the said decision as opposed to moving this court for review. 9. I find that the applicant has not established any error apparent on the face of the record and thus has not met the threshold for reviewing the judgement. The application lacks merit and is dismissed with costs to the respondent. 10. It is so ordered. DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 4TH DAY OF JULY 2025 IN THE PRESENCE OF: T.A ODERA JUDGE 4.7.25 Miss Opondo for Respondent Miss Nduhukire for the Applicant Court Assistant - Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19782/eng@2025-07-04 4

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