Britam General Insurance Co. Ltd v Kennedy Shikuku T/A Eshikhoni Auctioneers

B. Submissions 4. The Motion application was canvassed by way of written submissions. Both parties complied with the Court directives. C. Analysis and Determination 5. Having carefully considered the grounds in support of and against the Application, the submissions, the relevant law together with the authorities cited the following is the sole issue manifest for determination:a. 6. Whether the application is merited to warrant grant of orders for review. According to, Section 80 of the Civil Procedure Act:Review “Any person who considers himself aggrieved— 7. 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 as follows: Application for review of decree or order. 1. 2. 8. 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 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 appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review” The Rules limit the ground for review to be: 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; https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3529/eng@2026-02-13 2

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b. on account of some mistake or error apparent on the face of the record; c. 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. 9. The Applicant seeks a review of the judgment dated 30th June 2025, where this Court found the Respondent’s appeal well merited and allowed it. 10. The Application was primarily premised on the ground of the Court’s failure to establish that a response was filed and their submissions further elucidated reasons why the Respondent’s appeal was unmerited and challenged the validity of the Respondent’s reference. 11. The Applicant’s application was quite vague on the grounds seeking a review and the request herein entails re-analyzing the Court’s decision towards the Respondent’s appeal. That in my considered view is beyond the scope of review. 12. In the case of Republic versus Cabinet Secretary for Interior and Co-ordination of National Government Ex parte Abulahi Said Salad [2019] eKLR the Court cited National Bank of Kenya Ltd vs Ndungu Njau, {1996} KLR 469 (CAK) at Page 381 wherein it was held as follows: “ A review may be granted whenever the court considers that it is necessary to correct an apparent error or omission on the part of the court. The error or omission must be selfevident and should not require an elaborate argument to be established. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter. Nor can it be a ground for review that the court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be a ground for review.” 13. Similarly, in Multichoice (Kenya) Ltd v Wananchi Group (Kenya) Limited & 2 Others [2020] eKLR the Court of Appeal held that: “ It bears emphasizing that the phrase "mistake or error apparent" by its very connotation conveys the fact that the error envisaged is one which is evident per se from the record and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. It is prima-facie visible. It must relate to an error of inadvertence, one which strikes one on merely looking at record. An apparent error on the face of the record has been described in the most simplified manner by the Tanzania Court of Appeal adopting with approval commentaries by Mulla, Indian Civil Procedure Code, 14th Edition Pg 2335-36…” 14. The Applicant has nevertheless failed to demonstrate the reasons for the review as per the dints of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. D. Conclusion 15. The upshot of the foregoing is that the Application dated 23rd July 2025, is without merit as it fell short of the requisite threshold to warrant grant of orders for review and is hereby dismissed with costs to the Respondent assessed at ksh 15,000. 16. It is so ordered. DATED AND DELIVERED AT BUNGOMA THIS 13TH DAY OF FEBRUARY 2026. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3529/eng@2026-02-13 3

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M.S. SHARIFF JUDGE In the presence of: N/A by Paul Juma for Applicant MS Ngome for Respondent Peter Machoni - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/3529/eng@2026-02-13 4

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