Jck v Rn Nyakundi, J

3. i. That this Honourable court passed its judgment on 11.08,2025in which it dismissed the appeal in its entirety and maintained the termsof the trial court's judgmentb. ii. That soon after parties had filed their respective written submissions on the appeal and just before the court could deliver itsjudgment on 11.08.2025, the Respondent, acting out of sole decision and/or without involving the Applicant in decision making particularlyon the minors' school matters, transferred the minors from their former schools to [Particulars Withheld] Shools, locates in Kericho with the sole intention to lock the Applican access the minors. iii. That the current school- [Particulars Withheld] Schools- is not only tooschools but also has too many and expensive school related expenses which expenses are making it difficult for the Applicant to comply withthe court's orders. iv. That it is unfair for the Respondent to deliberately tansfer theminors to a more expensive schools without first informing the court ofthe financial implications arising thereto and also without involving the Applicant who has been mandated by the court to shoulder schoolrelated issues. v. That the new school fees and school related expenses were not a subject of consideration by both the trial and appellate courts. vi. That given the a foregoing new material information, ittherefore calls for review of the terms of the compliance on the part ofthe Applicant at least to reasonable terms that are just and fair in thecircumstances without overburdening him. vii. That the Applicant stands to suffer unjustly as a result of theRespondent's unfair actions towards him as she is determined to push the Applicant to extreme financial constraintsthat he cannot afford. viii. That the application is made in good faith and in the interest ofjustice and fairness. ix. That this application is made promptly. x. That this honourable court is clothed with unfettered discretionand powers to grant the orders sought herein The Application is supported by Affidavit sworn by the Applicant stating as follows; a. That I am an adult of sound mind and the plaintiff in this case henceduly authorized to swear this affidavit. b. That I am the applicant herein well versed with the facts of this case hence competent to swear this affidavit. c. That the Respondent and I are the biological parents of the subject minors herein namely: Joy Cherono and Joshua Kiplangat Cheruiyot d. That this Honourable court passed its judgment on 11.08.2025in which it dismissed the appeal in its entirety and maintained the terms of the trial court's judgment. e. That soon after parties had filed their respective written submissions on the appeal and just before this court could deliver its judgment on 11.08.2025, the Respondent, acting out of sole decision and/or without involving me in decision making particularly on the minors' school https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 2

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matters, transferred the minors from their former respective schools to [Particulars Withheld] Schools, located in Kericho with the sole intention to lock me from access them. 4. f. That the current school- [Particulars Withheld] Schools- is not only too expensive in terms of school fees as compared to the previous respective schools but also has too many and expensive school related expenses (not captured in the fees structure for fear of the Ministry of Education') which expenses are making it difficult for the Applicant to comply with the court’s orders. [Attached herewith is the current school's fees' structure from [Particulars Withheld] Schools in Kericho, sample receipts for payment of various school items/activities not captured in the school fees structure and school fees structure from previous respective schools marked as annextures Al, A2 & A3(a) & (b) respectively] g. That it is unfair for the Respondent to deliberately transfer the minors to a more expensive schools without first Informing the court of the financial implications arising thereto and also without involving the Applicant who has been mandated by the court to shoulder school related issues. h. That the new school fees and school related expenses were not a subject of consideration by both the trial and appellate courts since both courts seemingly relied on the financial obligations of each party. i. That given the foregoing new material information, it therefore calls for review of the terms of the compliance on my part at least to reasonable terms that are just and fair in the circumstances. j. That I stand to suffer unjustly as a result of the Respondent's unfair actions towards me as she is determined to push me to extreme financial constraints that I cannot afford. k. That I am not evading my parental responsibility towards my children.I reiterate that I am a law abiding citizen and a responsible parent and would wish to do so without being asked to. l. That I humbly urge this honourable court to consider the fact that the Respondent is trying to over burden me while she is hiding to this court her actual financial expenditure to the minors. m. That further, both minors are currently in boarding school and thus it would be unfair for me to be condemned to pay monthly maintenance of Kshs. 8,000/= for children who are in school most of their time. n. That in the foregoing, there is need to review to equitable terms o. That the Respondent is in active employment and with a better income than myself. p. That I make this application in good faith and without undue delay. q. That this honourabe court is clothed with unfettered discretion to grant the orders sought herein. r. That what is deponed to herein is true and correct to the best of my knowledge, information and believe. In response to the Application the Respondent filed a Replying Affidavit dated 28th October 2025 stating as follows; a. That I am the Respondent and the mother to the minors herein hence competent to swear this affidavit. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 3

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b. That I have read the Appellant's Application dated 29/9/2025 and understood its contents and issues raised and wish to respond as I do herein below. c. That this court made a negative order dismissing the appeal and therefore there is nothing to stay in the court's judgment made on 11/8/2025. This application should therefore be dismissed on that limb. d. That the appeal was decided on retrial and this court considered all the evidence on record and all the circumstances leading to the decision of the trial court and this court did not find any error made by the trial court. e. I am advised that the provisions of Section 80 of the Civil Procedure Act, only grants the court that passed the judgment or decree power to review its own decisions and therefore this court lacks jurisdiction to review the decree as it did not passed any on 11/8/2025. f. I am further advised that the introduction of new evidence should be a matter that was clearly left out by the court and which materially formed part of the trial court's record and not filing of new evidence. g. The Application is an abuse of court because the Applicant is aware that I secured new job in Kericho and therefore it was common sense that I would relocate with the minors. (Annexed and marked EC1 is the appointment letter). h. At Kericho, I secured a school which is comparable in terms of standards as the previous schools where the minors were schooling and the difference in terms of school fees is not much to warrant any review. The trial court's judgment was that the Applicant would pay minor's' school fees as per the fee structures as would be available from time to time and not that the said order would be complied with as per the fee structure provided then. i. Further, the Applicant is complaining having not even complied in terms of payment of upkeep fee and school fees and school uniforms. I paid kshs. 11,000/= school fees for JKC and Kshs. 3,640/= for uniforms AND Kshs. 25,000/= for JC and uniform fees of kshs. 6,500/=. (Annexed and marked EC2 a, b, c & d are copies of the respective receipts). j. The only amount the Applicant has paid is kshs. 13,000/= for school tour and kshs. 9,120/= paid to Douglas Buluma is not connected to the school and or minors' expenses k. The application before your honour is not aimed at serving the best interest of the minors but rather to frustrate the enjoyment of the fruits of judgment by the said minors. Your honour, when the judgment was passed by the Trial court on the upkeep for the minors at kshs. 8,000/ = monthly, the Applicant did not comply with it until when a notice to show cause was issued against him then he made partial payments. (See the notice to show cause marked EC3). l. That the Applicant again failed to remit the monthly upkeep for a long time and when he was proclaimed in execution of warrants of attachment and decree of the trial court, the Applicant moved this court with another application seeking stay pending appeal which the court granted. (Attached and marked EC4a, b c and d are the warrants, decree, and proclamation and stay order). m. That the Appeal was determined, the orders of stay lapsed and my advocate issued a demand to the Applicant for payment of the outstanding arrears and instead of honouring the demand, find a reason to delay the compliance and lodged this application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 4

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5. n. That The Applicant has left most ofthe responsibilities to me particularly the school related expenses including buying of school uniforms and shoes, shopping, fare and pocket money and at no given time he has sent the money to cater for those expenses. I have even been making payment school fees as the Applicant only chooses when to pay and when not to. (See annexure marked EC2.) o. That the Applicant does not deserve the orders sought because he does not even give an alternative to the complaints he is raising and thus his application is not to further the best interest of the minors but rather to curtail them. The applicant can only ask for review after demonstrating good faith and compliance preceding. p. That minors are day scholars, they need pocket money, transport fess and other related expenses and therefore the monthly upkeep ordered by the court will help me to meet those needs. The Applicant to be compelled to comply forthwith. q. That I pray that the prayers for stay of execution be declined and the Applicant be ordered to comply with the decree for reasons that children must eat, must go to school, must be clothed and must live decent live and such needs cannot be stayed. r. That what is deponed to herein is true to the best of my knowledge, information and belief. s. Reason Wherefore,the Plaintiff/Applicant prays that the Application dated 29/9/2029 be dismissed with costs. At the time of drafting this ruling, it is only the Applicant who had filed his Submissions dated 25th November 2025. Applicants Written Submissions 6. The learned counsel M/s Ogendi highlighted the facts as relates to the instant Application. Counsel abandoned Prayer No. 2 of the Application and proceeded to argue on the remining reliefs. It is submitted for the Applicant that this court should review the financial obligations towards the minors based on the fact that there has been there has been significant change of circumstances concerning the well-being of the minor. Learned counsel emphasized on the significant change of financial burden that has been heaped on the Applicant by the Respondent's unilateral conduct concerning the minors’ well being. It is further submitted for the Applicant that vide his supporting affidavit as well as further affidavit has explained elaborately that the burden of school fees obligations has currently shifted to a higher figure than what the trial court relied on when it was apportioning such obligations. The school fees and school related expenses currently have been increased and that the respondent's unilateral decision to shift the minors to a different school without informing the Applicant who was bestowed that obligation was unfair. 7. Learned counsel maintained that the Respondent is currently on a better job/ employment with a better salary than before (as evidenced in her letter of employment attached in her Replying affidavit) that she is currently a bank branch manager, EquitY Bank, Kericho. 8. The question of access to the minors the counsel submitted that Applicant has been barred from even conversing or accessing any information concerning the minors. Learned counsel maintained that it is for these reasons the Applicant to institute this Application. She urged the court to consider the Application. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 5

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Decision 9. To start with, an appeal was preferred to this court which was considered on the merits and thereafter a decision was made fashioned in the following language. Further, the Respondent detailed monthly expenses exceeding Kshs amounted to an annual total of Kshs 177,000 (Kshs 96,000 in upkeep and Kshs 81,000 in school-related expenses). This, too is proportionate based on comparative financial means. Furthermore, I take not that the court considered the best interests principle under Article 53(2) of the constitution and Section 114(1) of the Children Act, 2022, which provides a matrix for financial provision including the parents resources, responsibilities, and the child’ needs. The magistrate rightly noted the Respondents responsibilities and acknowledged the Appellant’s capacity to contribute reasonably. This court finds that the trail court’s judgement was grounded in both fact and law. The Appellants claim that the court was biased, ignored his evidence, or failed to consider the Respondent’s income is unsubstantiated. The judgement demonstrate a reasoned, proportionate and child- centered approach in distributing parental responsibilities. While the Appellant may seek variation if his circumstances materially change, no error or injustice is apparent in the trial courts decision. Accordingly, I make the following orders (a) The appeal is dismissed in the entirety (b) The judgement of the trial court delivered on 15th February 2024 in Eldoret children Case No E140 of 2023 is hereby upheld (c) This being a family matter, each party shall bear their own costs in the appeal. It is so ordered. 10. This is the decision which the Applicants seeks to subject to the review jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 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. Similarly Order 45 Rule 1 the court states as follows:- “Any person considering himself aggrieved (a) By a decree or order from which a 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 judgement to the court which passed the decree or made the order without unreasonable delay (2) A party who is not appealing from a decree or order may apply for a review for judgement not withstanding 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 appellant court the case on which he applies for review. 11. The review jurisdiction has been tested in various jurisdiction as exemplified by the following decision:Malleeswari v K. Suguna (2021): The court reiterated that review jurisdiction is strictly limited to correcting errors apparent on the face of the record, not to rehear on substitute a different view as if it were an appeal.Shanti conductor’s (P) Ltd v Assam State Electricity Board (2022): Held that under the guise of review, a petitioner cannot be permitted tor e-agitate and re-argue question which have already been addressed and deicedMeera Bhanja v State of Karmata (1993) Emphasized that review can be exercised for “sufficient reasons” if it is necessary to prevent a miscarriage of justice, often linked https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 6

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to the doctrine of actus curiae neminem gravabit ( an of the court shall prejudice no man)Sales Tax Officer (Enforcement) v Fag Precision Bearing Ltd (2005): Highlights that review is not a routine procedure and must be invoked only when a glaring omission or patent mistake exists.Error Apparent: The error must be obvious, not a result of a fresh argument, and must be self-evident on the face of the record.Sufficient Reason: Covers a wide range of situations, including crucial mistakes of fact or law, or preventing miscarriage of justice, as noted in the India Kanoon Search ResultLimitation: A review is not an appeal in disguise, it is meant to re-evaluate evidence, as discussed in the Supreme Court Observer report. 12. In the context of order 45 Rule 1 of the Civil Procedure Rules, it is trite that the power of review may only be exercised where the Applicant demonstrates that the impugned ruling or judgement comprises of some mistake or error apparent on the face of the record but this error on the face of the record must be such an error which must strike the court and will not require long drawn process of reasoning or analysis. It is also contemplated that the power or review can also be exercised for any sufficient reason which is wide enough to include a misconception of fact or law by a court which pronounce itself in the original decision. 13. The word review within the scope of the Civil Procedure Rules connotes Judicial re-examination of the case. Therefore, in order to rectify an error and prevent gross miscarriage of justice as laid down by the legislature. As the law stands in Kenya, ever since the adoption of the old and new constitution order review is the creation of the statute. It must be emphasized that a review jurisdiction cannot be invoked by an Applicant nearly for fresh hearings or arguments or correction of an erroneous view take earlier, the power of review can be exercised only as explained above elsewhere in this ruling for correction of a patent error of law or fact which stares on the face of the record without any elaborate arguments being needed by the review court. It is also the law in Kenya that the power of review may be exercised on discovery of new and important matter of the evidence which after the exercise of due diligence was not within the knowledge of the Applicant seeking the review or could not be produced by him or her at the time when the ruling or judgement was pronounced and delivered. What the parties who invoke Section 80 of the Civil Procedure Act as read with Order 45 Rule 1 do not appreciate is the fact that review of a judgement or ruling which came as a result of determining the issues on the merits is not a re-hearing of the appeal all over again. Hence the maxim that a judgement or ruling determining the rights of the parties on the merits once delivered is final and a departure with that rule can only be entertained or justified when circumstances of the case are of substantial and compelling character. It must be also be borne in mind by the parties and the review courts alike that the ground on discovery of new evidence or material by itself is not sufficient to entitle an Applicant an order for review of a judgment. 14. There is always this argument on the error of fact or law apparent on the face of the record as being a simple expression or ground for grant of review of judgment. In my view that is far from the truth as the expression error apparent on the face of the record, is an error which is based on clear ignorance or disregard the provisions of the law. It must be one manifest on the face of the record. Therefore, the letter and spirit of the law contemplates that an error is not apparent of the record if it is not selfevident and if it requires scrutiny, evaluation, and re-examination or arguments to establish it. 15. This is one provision of the law taken together which has been litigated extensively as demonstrated by the following cases:Masila & 2others v Krotonie Enterprises Limited (2205): the court corrected an error where the judgement ordered registration of wrong land parcels, demonstrating an error apparent on the face of the recordNyamogo and Nyamog Advocates V Kagi (2001) Established that an error must stare on in the face and not require long-drawn reasoning distinguishing a review from an appealWaithaka V Bashaeki & a Others (2024) Highlighted that an incorrect exposition of law https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 7

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or a different view by another judge is not a ground for review, but rather a self-evident error in the record.Akhura V Simon Kibet Rugut (2025) Clarified that once a review application is rejected the party cannot appeal the same decision 16. In the instant application, learned counsel M/s Mogendi has navigated this litigation landscape based on her submissions dated 15.11.2025 which basically is asking the court to revisit the same, and similar issues which were canvassed during the hearing of the substantive appeal. There is no sufficient cause or error of fact or law or mistake apparent on the face of the record in the impugned judgement. This is like inviting the court to re-hear the case afresh which can basically be described as siting on one’s appeal without jurisdiction to do so. In determining the appeal this court was not exercising original jurisdiction which is a reserve of the Magistrate’s Court gazztted by the Chief Justice as a Children’s Court within the scope of matter arising and cause of action under the children’s Act. For purposes of clarity, it is pertinent to reiterate the grounds upon which the review application is being agitated by leaned counsel for the Applicant. a. That this Honourable court passed its judgment on 11.08.2025 in which it dismissed the appeal in its entirely and maintained the terms of the trial courts judgment. b. That soon after parties had filed their respective written submissions on the appeal and just before the court could deliver its judgment on 11.08.2025, the Respondent acting out of the sole decision and/or without involving the Applicant in decision making particularly on the minor’s school matters, transferred the minors from their former respective schools to [Particulars Withheld] Schools, located in Kericho with the sole intention to lock the Applicant access the minors. c. That the current school- [Particulars Withheld] Schools- is not only too expensive in terms of school fees as compared to the previous respective schools but also has too many and expensive school related expenses (not captured in the fees structure for fear of the Ministry of Education) which expenses are making it difficult for the Applicant to comply with the court's orders. d. That it is unfair for the Respondent to deliberately transfer the minors to a more expensive schools without first informing the court of the financial implications arising thereto and also without involving the Applicant who has been mandated by the court to shoulder school related issues. e. That the new school fees and school related expenses were not a subject of consideration by both the trial and appellate courts, f. That given the a foregoing new material information, it therefore calls for review of the terms of the compliance on the part of the Applicant at least to reasonable terms that are just and fair in the circumstances without overburdening him. g. That the Applicant stands to suffer unjustly as a result of the Respondent's unfair actions towards him as she is determined to push the Applicant to extreme financial constraints that he cannot afford. h. That the application is made in good faith and in the interest of justice and fairness. i. That this application is made promptly. j. HAT this honourable court is clothed with unfettered discretion and powers to grant the orders sought herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 8

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17. In juxtaposition of these grounds and the issues raised in the memorandum of appeal are kind of similar or identical if one unbundles the language and giving it a little meaning. What this means the upper and lower-level threshold of the provisions of Section 80 of the Civil Procedure Act as construed with Order 45 rule 1 of the Civil Procedure Rules is far from being met by the Applicant so that the desired orders or remedies can be accorded in his favor as per the law established. The debt of this latest application runs foul the provisions of Section 7 of the Civil Procedure Act on the doctrine of re-judicata. This is what the Supreme Court illuminated in Kenya Commercial Bank Limited v Muiri Coffee Estate Limited (2016) eKLR as follows: “ Res Judicata is a doctrine of substantive law, its essence being that once the legal rights of parties have been judicially determined, such edict stands as a conclusive statement as to those rights. It would appear that the doctrine of res judicata is to apply in respect of matters of all categories, including issues of constitutional rights. In the same legal breadth the Appex court in John Florence Maritme Service Limited & another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) held as follow: “ The doctrine of res judicata, in effect, allows a litigant only one bite at the cherry. It prevents a litigant, or persons claiming under the same title, from returning to court to claim further reliefs not claimed in the earlier action. It is a doctrine that serves the cause of order and efficacy in the adjudication process. The doctrine prevents a multiplicity of suits, which would ordinarily clog the courts, apart from occasioning unnecessary costs to the parties; and it ensures that litigation comes to an end, and the verdict duly translates into fruit for one party, and liability for another party, conclusively. . It emerges that, contrary to the respondent’s argument that this principle is not to stand as a technicality limiting the scope for substantial justice, the relevance of res judicata is not affected by the substantial-justice principle of Article 159 of the Constitution, intended to override technicalities of procedure. Res judicata Constitutional Petition No. E536 of 2022 – Ruling Page 18 of 26 entails more than procedural technicality, and lies on the plane of a substantive legal concept. The learned authors of Mulla, Code of Civil Procedure, 18 th Ed 2012 have observed that the principle of res judicata, as a judicial device on the finality of court decisions, is subject only to the special scenarios of fraud, mistake or lack of jurisdiction (p 293): The principle of finality or res judicata is a matter of public policy and is one of the pillars on which a judicial system is founded. Once a judgment becomes conclusive, the matters in issue covered thereby cannot be reopened unless fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. The principle is rooted to the rationale that issues decided may not be reopened and has little to do with the merit of the decision.” The Court went on to observe that: “For res judicata to be invoked in a civil matter the following elements must be demonstrated: 1. There is a former Judgment or order which was final; The Judgment or order was on merit; 3. The Judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and 4 There must be between the first and the second action identical parties, subject matter and cause of action.” 18. I have felt it necessary however to briefly highlight some of the core-principles of re-judicata to indicate that the legal framework of the application on review properly distilled and restated cannot be precisely contra distinguished with the issues framed in the memorandum of appeal. This fundamental doctrine on re-judicata puts the courts on notice that there must be an end to litigation. The parties to a claim are therefore restrained from adjudicating cases arising out of the same cause of action in the event they feel aggrieved with the decisions over the court decided on the merits. It must be pointed that the Applicant in advancing the application on review was desirous of revisiting similar issues complained of against the judgment of the trial court. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 9

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19. Having taken into account the application , the grounds in support by the Applicant and the objection raised by the Respondent in the Replying affidavit together with the various views on the subject in the authorities cited and under consideration the application on review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules is lost with costs to the Respondent. GIVEN UNDER MY HAND AND THE SEAL OF THIS COURT THIS 17TH DAY OF FEBRUARY 2026. ……………………….……….. R. NYAKUNDI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/1677/eng@2026-02-17 10

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