Joseph Kigunda v Kenya Broadcasting Corporation

25. “ In the end, judgment is entered in favour of the Plaintiff and against the Defendant in the sum of Ksh 3,000,000=. The Plaintiff to be paid the costs of the suit.” 3. The Plaintiff in this Application contends that, that was an error apparent on the face of the record. Hence, he is by this Application seeking a review of the judgment. To include an award of interest. The Application has principally invoked Section 80 of the Civil Procedure Act (Cap 80 Laws of Kenya). Together with Order 45 Rule 1 of the Civil Procedure Rules. Being the court’s review powers. The Application was supported by the Plaintiff’s Supporting Affidavit, sworn on 17th January 2025. 4. The Application was opposed by the Defendant, through a Replying Affidavit. Determination 5. The Application was canvassed by way of written submissions. I have considered the Application as well as the submissions on record. 6. This Court’s power of review is provided for in Section 80 of the Civil Procedure Act, and Order 45 (1) of the Civil Procedure Rules. Under those provisions, this power is exercised where there is discovery of a new and important matter or 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 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. 7. The bit of that provision that applies to this Application, is the last a bit; i.e “…some mistake or error apparent on the face of the record, or for any other sufficient reason”. For errors of slip or omission, the slip rule in Section 99 of the Civil Procedure Act provides a remedial avenue. It states as follows: “ 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.” 8. For errors alluded to in Order 45 Rule 1 of the Civil Procedure Rules, and the nature of which the Plaintiff in his Application is contending the Court made in the subject judgment, they have to be apparent on the face of the record. They should be so self-evident, as not to require argument or emphasis. This being also on the backdrop or assumption that the pleadings were perfectly drawn and are not the ones that led the supposed error. 9. Which is not the case here, as the Plaintiff himself in the prayers in his Plaint did not include a separate prayer for interest on the damages. That is a material omission on the part of his pleadings, and a problem of draftsmanship. In any case a party is bound by his pleadings. The Plaintiff should take full responsibility for that error of draftsmanship, and should not shift the blame to the Court. 10. It is undeniable that the Plaint did not seek interest on the damages. This Application is therefore an afterthought, intended to revive the claim, after judgment. Besides, the awarding of interest is in the discretion of the Court. That being the exercise of discretion, there is no guarantee that the trial judge, would definitely and certainly have awarded interest had it been properly pleaded for. 11. Section 26 of the Civil Procedure Act, gives the court discretion on the award of interest in cases of money decrees. Awarding interest upon this Application, and at this stage long after the judgment, https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2699/eng@2026-01-22 2

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will not only result in prejudice to the Judgment-Debtor, but will also be an injudicious, as it will be a substantive alteration of the judgment. 12. Doing so will be an arbitrary speculation on how else the trial Judge could have exercised discretion. It cannot be used to re-open concluded discretion. Neither should it be used to remedy a defect in the pleadings; as is the case here. I hold that the mistake or error that the Plaintiff is accusing the Court of having made, was his own error in the pleadings on record. 13. I also note that the Application was filed in the year 2025, while the judgment whose review it seeks, was delivered in the year 2019. The lapse of five years, amounted to an unreasonable and inordinate delay. Order 45 Rule 1 of the Civil Procedure Rules provides that an Application of this nature be brought without unreasonable delay. In my considered view, a review Application, should be hot on the heels of the decision it seeks to review. 14. In the end, I hold that the Application not only lacks merit, but has also not met the legal threshold for the exercise of the Court’s review powers; and was filed after an inordinate delay of five years. The Application is therefore hereby dismissed. with costs. DATED AND DELIVERED AT NAIROBI ON THIS 22ND DAY OF JANUARY 2026. PROF (DR) NIXON SIFUNA JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/2699/eng@2026-01-22 3

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