Third Engineering Bureau of China City Construction Limited v Jacob Odhiambo Otieno & 1 other

judgment as there is a discernible error apparent on the face of the record. The appellant further averred that at paragraph [27] of its judgment the Court dismissed the appeal for the sole reason it (the appellant) focused attention on the multiplier approach and therefore missed the opportunity to demonstrate why Kshs. 3,000,000/= as a global award should be considered inordinately high. 3. In the appellant’s view, the Court erred on that finding since a cursory look at its submissions shows that it addressed the Court on the global sum and why the same was inordinately high as awarded at the trial court. It further averred that the issue of the multiplier approach was neither pleaded in the Memorandum of Appeal nor highlighted in the appellant's submissions dated 6th February 2025; and therefore the Court failed to consider the appellant’s submissions dated 6th February 2025; thereby occasioning miscarriage of justice. 4. It was therefore the contention of the appellant that it is in the interests of justice that the court reviews its decision and considers its submissions towards arriving at a just decision, hence, the prayer for stay pending the hearing and determination of the application and a decision on the appeal. 5. The respondents opposed the application and to that end relied on their Replying Affidavit sworn on 20th January 2026 by the 1st respondent. They averred that the application as presented before the Court is incompetent and fatally defective for want of proper form, and accordingly untenable to avail the applicant of the orders sought thereunder. The respondents further averred that the application is mischievous and a gross abuse of the due process of the Court to the extent that the same represents an attempt by the appellant to delay the respondents from enjoying the fruits of their judgement. 6. The respondents also deposed that the orders sought in the application herein do not properly lie within the jurisdiction of this Court to grant, and that the proper avenue for the ventilation of the appellant’s grievance, if any, would be by way of an appeal to a court of higher jurisdiction. They contended that they will be greatly prejudiced if the orders sought herein are granted, as the same would amount to a contravention of Article 159(2)(b) of the Constitution, which provides that justice shall not be delayed. They averred that litigation must come to an end and that no legal or factual justification has been made by the appellant to review a properly delivered judgment. Consequently, the respondents prayed for the dismissal and/or striking out of the application with costs. 7. The application was canvassed by way of written submissions, pursuant to the directions given herein on 26th November 2025. In its submissions dated 16th February 2026 the appellant reiterated its assertion that there is an error apparent on the face of the record warranting the review of the judgment delivered herein on 30th September 2025. The appellant proposed a single issue for determination, namely, whether it has established a case to warrant the issuance of the orders sought. 8. The appellant reiterated its contention that at paragraph [27] of the judgment, the Court held that the appellant focused attention on the multiplier approach and therefore missed the opportunity of demonstrating why Kenya Shillings Three Million (Kshs. 3,000,000/=) as a global award should be considered inordinately high. It further submitted that the Court erred in that finding for the reason that the appellant exhaustively addressed the court as to the reason why the global sum awarded at the trial court was inordinately high both at the trial court and the appellate court. 9. The appellant relied on the following decisions: (a) National Bank of Kenya v Ndungu Njau [1997] eKLR (b) Kagunza Adanji v Maiyo & Another (Environment & Land Case 35 of 2016 [2022] KEELC 3390 (KLR) in which the decision of the Court of Appeal in Muyodi v Industrial and Commercial Development Corporation & another (2006) 1 EA 243, was discussed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6679/eng@2026-04-30 2

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10. The appellant invited the Court to interrogate Annexure MO 2 and Annexure M03b which are copies of the duly filed submissions in this appeal and at the trial court, respectively. It pointed out that in both sets of submissions the appellant invited both courts to award a sum of Kshs. 1,000,000/= for general damages under the head of loss of dependency and submits heavily on the global sum approach. It added that the multiplier approach was neither pleaded nor submitted on by the by it and therefore the Court erred in its judgment. In the premises, the appellant prayed for a reconsideration and reanalysis of the appeal. 11. The appellant argued that the lower court's reliance on Maina Macharia v Cyprus to justify a global award of Kshs. 3,000,000/ = failed to take into account that even global awards must reflect the trend of previous, recent and comparable awards as established in Civicon Limited v Richard Njomo Omwancha & 2 Others [2019] eKLR. Accordingly, the appellant posited that it has established a feasible case for review warranting its invitation for a re-examination of the submissions tendered in support of the appeal. In conclusion, the appellant prayed that: 12. (a) The instant application for review be allowed. (b) The award of Kenya Shillings Three Million (Kshs. 3,000,000/=) for loss of dependency at the trial court be reviewed downwards to Kenya Shillings One Million (Kshs. 1,000,000/=) to align with established legal trends and the evidence on record. On his part, the respondent was of the view, as expressed in his written submissions dated 20th February 2026, that the issue for determination is whether the Court can review its judgment dated 30th September 2025. He made reference to Sections 80 and 99 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules and submitted that a court can revisit an order or a judgment only in limited circumstances; the main policy concern being finality of litigation. In the respondent’s submission, the appellant has not satisfied the requirements of the aforementioned provisions. He accordingly urged for the dismissal of the application for review on the basis of the following authorities: (a) Francis Origo & Another v Jacob Kumnli Mungnln, [2005] 2 KLR 307, (b) Julius Ochieng Oloo & another v Lilian Wanjiku Gitonga [2019] KECA 343 (KLR). 13. The respondent urged for the dismissal of the appellant's application with costs on the grounds that it is not only without basis, but also because the Court is functus officio. 14. Order 45 Rule 1 of the Civil Procedure Rules states: “ (1) 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 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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6679/eng@2026-04-30 3

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(2) 15. 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 foregoing provisions are anchored on Section 80 of the Civil Procedure Act, which states as follows: “ Any person who considers himself aggrieved— 16. (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.” Thus, in Dock Workers Union & 2 others v Attorney General & another Kenya Ports Authority & 4 others (Interested Party) [2019] eKLR, a 3 judge bench of the court held: “ …for a Court to review its own orders, it must be demonstrated that there is discovery of new and important matter or evidence. It must also be shown that the new evidence was not within the knowledge of the party seeking review or could not be produced at the time the orders were made. Such party must also satisfy the Court that this was the case even after exercise of due diligence. A Court will also review its orders if it is demonstrated that there is some mistake or error apparent on the face of the record, or for any other sufficient reason. The error must be evident on the face of the record and should not require much labour in explanation. An application for review must also be made without unreasonable delay. 17. Likewise, in London Distillers (K) Ltd v Cabinet Secretary, Ministry of Education & 4 others [2022] eKLR, Hon. Odunga, J (as he was then) while dealing with an application for review on the discovery of a new important matter held: “ …firstly, the applicant must also establish that the new and important matter or evidence was not within its knowledge after the exercise of the normal diligence required of any conscientious litigant; secondly, the new and important matter and evidence must be something which existed at the date of the decree, hence the section does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event; thirdly the Court would decline to grant the application where the applicant is not seeking to give effect to its intention at the time the decision was made but to open the doors to challenge the correctness of the decisions of the Court on the basis of arguments thought of long after the judgement or decision was delivered or made; Fourthly, such new and important matter or evidence is of such nature that it would lead any court of law applying its mind to the facts and the law applicable to the case reach a determination that if the court which heard the original application had the advantage of the new evidence, it would have reached a different decision other than the one that was rendered; and lastly, it must be proved that the applicant had acted with due diligence and the existence of the evidence was not within his knowledge and the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6679/eng@2026-04-30 4

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In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing…” 18. In this case, it was the contention of the appellant that there is an error apparent on the face of the record. The appellant was specific to paragraph [27] of the judgment the Court and contended that its appeal was dismissed for the sole reason that it focused attention on the multiplier approach and therefore failed to demonstrate why Kshs.3,000,000/= as a global award should be considered inordinately high. It is manifest from the application that, in the appellant’s view, the Court erred on that finding because it extensively addressed the Court on the global sum. It also submitted the issue of the multiplier approach was neither pleaded in the Memorandum of Appeal nor highlighted in the appellant's submissions dated 6th February 2025; and therefore the Court failed to consider the appellant’s submissions dated 6th February 2025 therefore occasioning miscarriage of justice. 19. From the foregoing, it is manifest that the attack is on the Court’s appreciation of the appellant’s submissions. It is now trite that, where that is the case, the best course for a party to take is to file an appeal. In Nyamogo & Nyamogo Advocates v Kago [2001] 1 EA 173 the Court of Appeal made this point as follows: “ ... There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face, and there could reasonably be no two opinions, a clear case of error apparent on the face of the record would be made out. An error which has to be established by a long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the Court in the original record is a possible one, it cannot be an error apparent on the face of the record, though another view was also possible. Mere error or wrong view is certainly no ground for review although it may be for an appeal..." 20. Similarly, in National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, the Court of Appeal had the following to say: “ ... 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 ground for review." 21. The Court of Appeal further stated that: “ ...the learned Judge ... made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the Learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same Court which had adjudicated upon it." 22. In the case of Pancras T. Swai v Kenya Breweries Limited [2014] eKLR, the Court of Appeal restated its viewpoint thus: “ It seems clear to us that the appellant, in basing his review application on the failure by the Court to apply the law correctly faulted the decision on a point of law. That was a good https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6679/eng@2026-04-30 5

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ground for appeal but not a ground for an application for review. If parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law, either because a Judge has failed to apply the law correctly or at all, a dangerous precedent would be set in which court decisions that ought to be examined on appeal would be exposed to attacks in the courts in which they were made under the guise of review when such courts are factus [sic] officio and have no appellate jurisdiction…The power to review decisions on appeal is vested in appellate courts…” 23. In the light of the foregoing, it is plain that the application dated 10th November, 2025 is utterly devoid of merit. The same is hereby dismissed with costs. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF APRIL 2026 ……………..…………………. OLGA SEWE JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6679/eng@2026-04-30 6

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