High Court 11606 of 2026

The consent order, once approved by the court and made into an order or decree, established an estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised. 4. The appellant argued that the Court judgment, while it dismissed the appeal, it had already earlier recorded a final order at an interim stage, which it failed to address and which would have the effect of returning the parties to the trial court, no matter the outcome of the appeal, since it was by consent. 5. According to the applicant all the while, the rules of final adjudication require that the court, when hearing the appeal matter, would either have to adopt that part of the final Consent orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination. 6. The applicant submitted that the Court did not do that, committing an error that is apparent on the record. By not expressly taking any of the options, the original binding effect of the Consent Order remained and remains to date. 7. The applicant cited the case of Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222 where the Court of Appeal confirmed that an agreement reached at the interim stage and acted upon by the parties constituted a binding contract, especially where its terms were accepted by conduct and not subsequently rejected or superseded. The court further held that such interim agreements are enforceable, and their binding force persists unless explicitly set aside or replaced by final terms. B. The other error was that the Court dismissed the Appeal singularly on the clearly admitted basis of a mistake of an Advocate, thereby unfairly prejudicing an innocent party. 8. The appellant submitted that it shall demonstrate that the application has met the threshold for review, and it should be granted. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 2

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9. According to the applicant based on these two major errors, the applicant pleads with this Court to agree with the Appellant's application for review of the judgment and dismiss the Respondent's responses, which allude to alleged assumption of technicality, misleading statement on the impact of the consent order, and contradictions as to the existence of the Court order. 10. The applicant set out the factual background of the case as follows;i. The Appellant filed the Trial case in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liquidation) vs. Interspar Limited. In this case, the Appellant made an application for extension of time for its Defence and Counterclaim to be deemed as duly filed. ii. The Hon. CK. Cheptoo (“Trial Court”) dismissed Appellant's Notice of Motion Application dated 1st November, 2023 in NAIROBI MCCC NO E3638 OF 2022 –ARM Cement PLC (in Liquidation) vs. Interspar Limited. The Court refused to entertain an application by the Appellant based on a finding that a 2-day delay in filing was inordinate and that the Appellant was an indolent litigant. iii. Trial Court's ruling necessitated an appeal, which the Appellant instituted before this Honourable Court vide a Memorandum of Appeal. The Appeal to this Court 16. The Appellant challenged the ruling in the Court vide a Memorandum of Appeal dated 29" December 2023. The appeal was precipitated by the fact that: a. On 29% September 2023, the Trial Court granted the Appellant 14 days to file its Defence on condition that it pays throw away costs of KShs. 20,000. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 3

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b. The Appellant promptly paid the throw-away costs to the Respondent and thereafter prepared their Defense. c. A Defence and Counterclaim dated 5th June 2023 in response to the main suitin MCCC No. E3638 of 2022, filed the said pleadings on 15th October 2023 (a Sunday), and served the Respondent on 16th October 2024. d. At the time of filing the said pleadings, the Appellant's Advocate genuinely believed that they were within the 14 days, and that they had until 16t October, 2023 to file, having excluded a public holiday (10 October, 2023) and the last day being a weekend (Saturday 14 October, 2023) from their computation of time. Consent order arising from Appellant's Application dated 2nd January, 2024 e. Together with the main appeal, the Appellant filed an interlocutory application vide a Notice of Motion Application dated 2nd January, 2024. At this stage, a key development occurred on 18th April 2024. On this day, the Appellant's Notice of Motion Application dated 21 January, 2024 came up for hearing before the Honourable Court, Lady Justice C. Meoli. On the same day, the parties, through their Advocates, Counsel Mr Shikanda for the Appellant and Counsel Ms Mabango for the Respondent, agreed to compromise and allow the said Application. f. By consent, the Honourable Court, Lady Justice C. Meoli allowed the Appellant's Notice of Motion Application dated 2nd January, 2024, in the following terms: 1. THAT Motion dated 2nd January, 2024, is allowed to wit: NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 4

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I. This Honourable Court be pleased to issue an Order for preservation of the status quo pending the outcome of the Appeal. II. Il. There be a stay of proceedings and execution of the ex-parte Default Judgment entered in Nairobi MCCC No. E3638 of 2023 on 28" April, 2023, pending hearing and determination of the Appeal. III. The Defence and Counter-claim dated 5" June, 2023 and filed on 15th October, 2023, in MCCC No. E3638 of 2022 be deemed properly filed. IV. The cost of this Application will be in the cause. Subject to the Applicant depositing Kshs. 400,000/into a joint interest- earning account within 30 days. V. 2. THAT costs in the cause. g). THAT as the Record of Appeal filed, the Appeal be perfected for service within the week. h). THAT Mention before the Deputy Registrar on 21st May, 2024. Judgment 11. The fact that the Appellant deposited the security of Kshs. 400,000 into a joint interest earning account within the 30-days’ time period stipulated by this Honourable Court has not been disputed by the Respondent and so the said Consent Court Orders, which are final in nature with respect to the Appellant's Defense and Counterclaim as filed in the Trial Court, have remained valid at all times material. 12. This instant application was filed after the judgment on appeal was rendered. It was brought without any unreasonable delay. All it asks the NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 5

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court is to review its judgment. The main ground of the application is that there is a clear mistake and an error apparent on the face of this Honourable Court's record, warranting the decision of the Court to be revisited. 13. The Appellant filed the application, including the following documents. a) Certificate or urgency dated 29 May 2025 b) Notice of motion dated 29th May 2025 c) Supporting Affidavit of Tanveer Sodi sworn on 29 May 2025. d) Further Affidavit of Tanveer Sodi sworn on 221 September 2025. 14. In response, the Respondent has filed: a) Replying Affidavit sworn by Elliam Kweya on 8 August 2025. 15. The applicant set out the following issues for determination;ISSUES FOR DETERMINATION 16. The submissions address the following issues: i. Whether this Court has jurisdiction to entertain the review application? ii. Whether the application has met the threshold for review? iii. What is the impact of the Consent Order granted in the Notice of Motion Application dated 2nd January, 2024? iv. Whether the Court should grant the orders sought? 17. On Jurisdiction the applicant submitted that the application is predicated on the claim that there is a clear mistake and error apparent on the face of this Honourable Court's record, warranting the decision to be revisited. 18. The applicant relied on Section 80, Civil Procedure Act Cap 21 which states: “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 NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 6

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(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.” 19. 0rder 45 Rule 1, Civil Procedure Rules, 2010 provides "(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 allowed, and who from the discovery of new and important matter or evidence which, after due diligence, was not within his knowledge or could not be produced at the time the decree was passed or 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 without unreasonable delay. 20. The applicant asserted that this is not turning an appeal disguised as a review. Further, that he is not trying to deny any party the fruits of the judgment. All the applicant seeks is what is allowable under these sets of laws applicable to the proceedings herein, particularly on the ground that there is an error apparent on the face of the record. 21. In National Bank of Kenya Limited v Ndungu Njau KLR 469, the Court established that: “An Application for review must show an error apparent on the face of the record or new evidence to justify reopening the case.” 22. The applicant maintains that they have been able to demonstrate this. 23. On whether the application has met the threshold for review, the applicant submitted that the review application was filed without inordinate delay. He cited the case of Republic v Public Procurement Administrative NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 7

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Review Board & 2 others eKLR where the Court reiterated the requirement for prompt application without unreasonable delay. There is no doubt that the instant application was filed without unreasonable delay. 24. The Court dismissed the Appeal and further order for execution of the lower Court's decision to proceed whilst there is a Consent Order issued on 8 July, 2023. 25. According to the applicant the error pointed out by the applicant is apparent from the record as is envisaged in Order 45 Rule 1, Civil Procedure Rules, 2010. 26. The applicant further submitted that one of the errors was that a Consent Order in respect to the Appellant's Notice of Motion Application dated 2d January, 2024, was adopted by the Court admitting the Appellant's Defence and Counterclaim filed in NAIROBI MCCC NO E3638 OF 2022 - ARM Cement PLC (in Liquidation) vs. Interspar Limited as properly filed and made into an order or decree. The consent order, once approved by the court and made into an order or decree, established an estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised. a. The Applicant has submitted the ideal position, which is that the final adjudication requires that the court, when hearing the appeal matter, to either adopt that part of the final Consent orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination. The applicant argues that this Court did not do that, committing an error that is apparent on the record. b. He added that the Court did not state the fate of the consent order. Its judgment did not guide what happened with the counterclaim. By not expressly taking any of the options, the original binding effect of the NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 8

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Consent Order remained and remains to date. In Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222, the Court of Appeal confirmed that an agreement reached at the interim stage and acted upon by the parties constituted a binding contract, especially where its terms were accepted by conduct and not subsequently rejected or superseded. The court further held that such interim agreements are enforceable, and their binding force persists unless explicitly set aside or replaced by final terms. 27. The applicant maintains that as long as the consent order stands the error alluded to by the applicant remains apparent thus this court should intervene by way of review. 28. The applicant asserted that it is clear that the Respondent has attempted to deny that such an order exists. According to the applicant the Respondent's denial is without basis as it is contrary to what is apparent on the face of the record of this Honourable Court. 29. Furthermore, the claim that no such order exists is an afterthought. The Respondent knew the consent order, as they were copied in the Appellant's communication to the consolidated bank forwarding the order. 30. The applicant stated verbatim the scope of the compromised application and the consent order adopted by the court. However according to the applicant the Respondent has attempted to claim that the Consent order was limited in scope, even suggesting that it was only addressed to the issue of stay which is not correct since the parties compromised the entire application and that one of the prayers sought in the interlocutory application on appeal was with respect of the Deeming of the Defense and Counterclaim in MCCC E3638 of 2022 as duly filed. The consent therefore extended to that order. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 9

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31. Indeed, it is not true as the Respondent has alleged that the consent was limited to a stay of execution. 32. The applicant urged this court to treat as an afterthought the suggestion by the applicant that the consent order was limited in scope. The truth is that following the extraction of the Court order on 8th July, 2024, the Appellant wrote to the Consolidated Bank forwarding the order containing the terms of ‘deeming the defense and counterclaim as filed. 33. The Respondent was copied in the communication and has not objected to the claim to date. 34. The applicant went further to submit that the Second Error related to finding on the Mistake of the Advocate. 35. The judgment has an apparent mistake on the application of rules of justice as enshrined under Articles 48 and 50 of the Constitution of Kenya, 2010, entitle every litigant to a fair hearing and access to justice as a bare minimum, which rights have been curtailed on account of the errors and mistakes identified on the face of this Honourable Court's Judgment. 36. The record of the Court judgment shows a clear mistake in the Honourable Court's failure to consider the long-standing principle of law that the error of an Advocate ought not be visited upon a litigant, as adopted in Cooperative Insurance Company Limited v Charles Mworia M’Aranja & Jane Kambura (High Court of Kenya at Machakos Civil Appeal No. 53 of 201 6). In this case, it was held that the mistake or error of an advocate or legal representative should not ordinarily be visited upon the litigant, especially where it causes a bona fide and excusable procedural delay. 37. There is a glaring error on the face of the record as the Honourable Court has condemned the Appellant as an indolent litigant despite the Appellant NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 10

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promptly abiding by the Orders issued by the Trial Court in paying the awarded throw-away costs within the timelines stipulated by the Court. 38. Therefore, if the Judgment of this Honourable Court continues to stand asis, the Respondent will not only endure the loss of their assets and source of livelihood, but they will also be condemned unheard, having been unfairly removed from the seat of justice without being afforded a hearing in their Defense. 39. The applicant maintains the he has laid out a solid acse for review of the judgment on the basis of the errors pointed out which he asserts meet the test set out in, in Mberia v Mbui (Civil Appeal 102 of 2020) KECA 954 where the court held: “The error or omission must be self-evident and should not require an elaborate argument to be established. It will not be sufficient ground for review if detection of the error requires detailed scrutiny or debate.’’ 40. The applicant submitted that if the orders sought are not granted the applicant would be at the risk of losing Ksh 400,000, the total of KShs. 7,049,439.87 is both colossal and unproven, given the financial challenges of the Respondent, particularly during the transition from administration to liquidation in 2018 and 2021. 41. The applicant maintains that the respondent has no ability to repay the amount. 42. The correct legal position is that when a party pleads inability of the respondent to pay back the decretal sum, the evidential burden is on the respondent to prove such ability. The applicant's allegation of inability suffices absent rebuttal by the respondent. This aligns with the finding made in Bonface Kariuki Wahome v Peter Nziki Nyamai & Another eKLR. In this case, it was held that the burden is on the respondent NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 11

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(debtor) to prove the ability to repay the decretal sum if the decree is set aside and execution stayed. The applicant needs only to allege inability to repay or demonstrate potential irreparable loss, while it is the respondent who must show financial capability to refund the sum eventually. 43. The fact that there is a default judgment at the Trial Court, and for which the judgment in NAIROBI HCCA E007 OF 2024 has cleared the way for the Respondent to execute the applicants apprehension is that the execution is imminent, considering the Respondent's written requests of 2nd June 2023 (Exhibit marked “TS-7") and another one dated 26th May, 2025 (produced as Exhibit marked “TS-8"), addressed to Consolidated Bank of Kenya, Koinange Street Branch, where a further security deposit of Kshs. 400,000 is held and calling for its immediate release in part settlement of the default judgment entered in the lower/ Trial Court. 44. The applicant posed the question, what is the impact of the consent order granted in notice of motion application dated 2 nd january, 2024? Impact of the Consent as a binding estoppel - Issue estoppel. 45. The Applicant averred that the consent order can be determinative. Contrary to what the Respondent alleged at paragraph 6 of the Replying Affidavit, the correct position of the law is that a final order is issued at an interim stage, especially by consent in the manner in which it was granted, and that order becomes a binding contract. 46. In support of the argument the applicant relied on the case of Byram Pestonii Gariwala v. Union Bank of India & Ors. (1992) 1 SCC 31; State of Orissa AIR 1956 SC 346, the Supreme Court decided, in December 2024, that a consent order, being the record and approval of a mutual settlement between parties, gives rise to estoppel by judgment (issue estoppel) concerning the issues expressly addressed by the order. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 12

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The Court noted that parties are generally precluded from disputing those matters in subsequent proceedings, except where the order is set aside due to fraud, misrepresentation, or mistake. 47. The applicant further submitted estoppel by judgment between the parties regarding the matters actually and necessarily decided or compromised. Given this impact, the rules of final adjudication require that the final judgment the court would either have to adopt that part of the final orders allowed at the interim stage as-is or specifically set aside that consent order to the extent that it gave a final determination, which this appellate court did not do. The impact of not doing so is twofold: a. One, the consent order cannot be casually dismissed as a technicality (as the Respondent suggests at paragraph 10 (g) and (h) of the Respondent's Replying Affidavit) since it is a binding contract, the effect of which is final upon the parties, unless the final determination expressly sets it aside. b. Two: if it is not expressly set aside in a final determination, the original binding effect of the consent remains. This is the position in Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd EWCA Civ 2222, where the Court of Appeal confirmed that interim agreements are contractually enforceable and their binding force persists unless explicitly set aside or replaced by final terms. 48. The applicant has further contended that Respondent's claim of a general rule that an interim consent order cannot override a final judgment is both untrue and wholly misleading in the circumstances of the instant case and in light of the decision in Arcadis Consulting (UK) Ltd v AMEC (BCS) Ltd. This Court should not accept it. Impact of the Consent as a binding estoppel — Promissory estoppel. 49. Furthermore, and besides the issue of estoppel the respondent is estopped from claiming that the consent order was not determinative as: NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 13

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a. The Respondent has long been aware of the determinative nature of the consent. Prayer 7 of the Appellant's application dated 2 January 2024, contained at page 13 of the Respondent's reply, which has been replicated in the Memorandum of Appeal, did in fact invite the court to tamper with the decision of the trial court in MCCC No. 3638 of 2022. The Respondent was well aware of this application all along. b. Respondent's advocates have not denied having instructions in the matter when the matter was compromised or made any allegation of misrepresentation or fraud. As such, there is no reason, be it fraud or misrepresentation, to vitiate the consent order. c. Respondent is further estopped because it was on the reliance of that compromise made, which the Appellant, after the Court granted the order, proceeded to make the payment for security for costs. In Central London Property Trust Ltd v High Trees House Ltd, KB 130, where a party, having received a formal order, does not timely object to its existence or effect and instead remains silent, equity may intervene to prevent that party from later denying the order by applying the doctrine of promissory estoppel. The courts have recognized that silence or acquiescence in such circumstances can amount to an implied representation or promise that the party accepts the existence of the order, and it would be unconscionable to allow the Respondent to dispute it later, especially if the Appellant has acted in reliance on that position. As articulated in Lacy v. Wozencraft, 188 Okl. 19, 105 P.2d 781, and echoed in STRAHM v. BOARD OF TRUSTEES (1950), promissory estoppel can arise from silence when a person fails to speak out on receipt of an order, knowing that others are relying on their lack of objection. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 14

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50. The applicant asserted that if the Judgment of this Honourable Court continues to stand as-is, the Respondent will not only endure the loss of their assets and source of livelihood, but they will also be condemned unheard, having been unfairly removed from the seat of justice without being afforded a hearing in their Defense. 51. The applicant thus urged this court to allow the review application. 52. By an Order of this Honourable Court, the Defense and Counter-claim dated 5th June, 2023 was admitted into the Trial Court's record. The rules of justice, therefore, dictated that the Defense having been accepted into the Court's record, the Appeal be allowed to pave the way and will enable the suit that was before the Trial Court to proceed on its merits. 53. This Honourable Court reviews, discharges, varies, and/or sets aside the Judgment delivered by this court on 15" May, 2025 and to substitute the same with a decision allowing the Appeal. 54. The Honourable Court be pleased to direct that the dispute between the parties be referred back to the Trial Court for hearing on priority basis. 55. The Honourable Court grants such other orders and directions as may appear to this Honourable Court just and convenient to grant under the circumstances. RESPONDENT'S CASE 56. The Application seeks a review of the Judgment by this Honourable Court dismissing the Applicant's Appeal with no costs. 57. By a Plaint dated 14th July 2022, the Respondent herein instituted a claim against the Appellant seeking relief for the sum of Kshs. 7,049,439.87/= being the outstanding debt owing to the Respondent together with interest and costs of the suit. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 15

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58. The Summons to Enter Appearance were served alongside the Plaint and other accompanying documents on the Defendant on 26th July 2022. The Respondent was required to enter an appearance within 15 days from the date of service. 59. The Respondent, however, entered an appearance on 15th August 2022 and the Appellant received the Memorandum of Appearance "Under Protest" on account of the same being filed out of time. 60. In the meantime, the parties continued to engage in further negotiations through correspondence in a bid to reach a settlement, however, the Appellant's claim that out-of-court negotiations were commenced on 24th August 2022 is an attempt to mislead the Court. The Respondent has been keen on having the matter settled and as such they continued to engage the Respondent in settlement talks even after commencement of the suit. 61. Noting that the engagements that continued after the commencement of the suit were futile and that the Appellant had not filed its Defence or any further pleadings in the matter, the Respondent proceeded to file a Request for Judgment dated 9th February 2023 on an even date. 62. It is instructive to note that any negotiations between parties do not halt the parties's statutory obligations. Therefore, the Appellant had an obligation to comply with the timelines provided in the Civil Procedure Act and Civil Procedure Rules. 63. The Request for Judgment was endorsed by the Learned Magistrate on 28th April 2023and the Respondent subsequently prepared and served the Appellant with a draft decree on 2nd June 2023 for their review and/or approval with or without amendments. 64. The Appellant consequently filed an Application dated 5th June 2023 seeking inter alia a stay of execution of the ex-parte Judgment delivered on NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 16

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28th April 2023, the Decrees and any consequential Orders and proceedings arising therefrom. 65. The Trial Court on 29th September 2023 delivered its Ruling on the Appellant's Application dated 5th June 2023 allowing the Application in the following terms: a) THAT the Defendant pays throw-away costs of Kshs. 20,000 to the Plaintiff within 14 days from the date hereof; b) THAT the Defendant is ordered to file and serve the Defence within 14 days from the date hereof. c) THAT failure to comply with Orders No. 1 and 2 above, the orders setting aside Judgment will lapse automatically. 66. The 14 days ordered by the Court lapsed on 13th October 2023 and the Defendant filed and served its Defence and Counterclaim on 16th October 2023. The Appellant alleges that they filed the Defence and Counterclaim on 15th October 2023 but the date confirmed from the judiciary portal as to when theyfiled the Defence and Counterclaim is 16th October 2023. The delay by the Appellant was 3 days and not 2 as pleaded in the submissions. 67. According to the respondent when the matter came up for Mention on 1st November 2023 for purposes of confirming the Defendant's compliance, the Respondent's Advocate pointed out the Appellant's non-compliance and sought leave to execute on account of such non-compliance. 68. The Appellant's Advocate acknowledged that they had indeed filed the Appellant's Defence and Counterclaim outside the 14 days granted by the Court and sought the Court's indulgence. It was the Respondent's position that the Orders issued by the Court were self-executing and the Court lacked the requisite jurisdiction to grant any leave as it was functus officio. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 17

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69. Upon hearing both Advocate's oral Submissions, the Learned Magistrate declined to set aside the Orders of 29th September 2023 and subsequently granted the Respondent liberty to execute. 70. The Appellant then proceeded to file a Notice of Motion Application1 dated 1st November 2023 to stay the ex-parte judgment and be granted leave to file its defence for the second time. The said application was dismissed by the court on 18th December 2023for lack of merit. 71. The Appellant challenged the Trial Court's Ruling of 18th December 2023 vide a Memorandum of Appeal dated 29th September 2023. 72. The Appeal was canvassed by way of Submissions and by a Judgment delivered on 14th May 2025, this Honourable Court dismissed the Appeal with no costs. The respondent set out the facts in the submissions and identified the following issues for determination. a) Whether the Application is merited to warrant grant of orders of review. b) What was the effect of the consent order arising from the Application dated 2nd January 2024. c) Who should bear the costs of the Application. 73. On whether the application is merited to warrant grant of orders of review the respondent argued that this Honourable Court is vested with the power of review but the power must be exercised within the framework of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 74. The respondent also referred to Section 80 of the Civil Procedure Act which 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 NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 18

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(b) by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court, which passed the decree or made the order, and the court may make such order thereon as it thinks fit. 75. The respondent further referred the court to Order 45 Rule 1 of the Civil Procedure Rules provides as follows: "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 review of judgment to the court which passed the decree or made the order without unreasonable delay". 76. The foregoing provisions give the Court the power of review. 77. The Rules require that before a court reviews its decision it must be satisfied that any of the following grounds is established;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, b. on account of some mistake or error apparent on the face of the record, NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 19

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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. 78. The above provisions have been consistently interpreted to mean that review jurisdiction is narrow and cannot be used to re-open or re-argue matters already determined on merit. 79. The Order of review is a discretionary one and this was held in National Bank Of Kenya Limited vs Ndungu Njau [1997] eKLR,where the Court of Appeal stated that: "A review may be granted whenever the Court considers that it isnecessary to correct an apparent error or omission on the part of the court. The error or omission must be self evident 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." 80. Similarly, in Multichoice(Kenya) Ltd v Wananchi Group (Kenya) Limited & 2Others [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 primafacie 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 NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 20

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Court of Appeal adopting with approval commentaries by Mulla,Indian Civil Procedure Code,14th Edition Pg 2335-36..." 81. The Applicant seeks a review of the Judgment delivered on 14th May 2025 where this Court found its Appeal without merit and dismissed the same with no costs. The Application is primarily premised on the ground of an error on the face of the record. 82. In laying down the legal threshold of what constitutes an error apparent on the face of the record, Hon. Justice Mativo in the case of Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya [2019] eKLR,held that: "The starting point is that 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 self-evident 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." 83. It is trite law that an error apparent on the face of the record must be such as one that can be seen by a quick glance, that is, an obvious and patent mistake. It shouldn't be one that has to be established by a long-drawn process of reading. 84. The Applicant seeks review of the Judgment primarily on two alleged errors: NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 21

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a. The Court dismissed the Appeal whilst there existed a Consent Order issued on 8th July 2023 which deemed the Applicant's Defence and Counterclaim dated 5th June 2023 properly filed. b. The Court dismissed the Appeal singularly on the clearly admitted basis of a mistake of an Advocate thereby unfairly prejudicing an innocent litigant. 85. The Respondent submits that it has been established that an error or omission must be self-evident and should not require an elaborate argument to be established and it view of the matter or the Court reached an erroneous conclusion of law. The Application has however failed to point out any sufficient grounds to warrant a review and setting aside of the Judgment of 14th May 2025 uploaded on the Judiciary Case Tracking System on 15th May 2025. 86. The respondent submitted that a mere disagreement with the interpretation of the law does not necessarily constitute grounds for review and the Applicant appears to have disguised this Application for review as an Appeal as it is only challenging the merits and correctness of the Judgment rather than pointing out the errors or mistakes on the face of the record. 87. The Applicant is citing errors that are not grounds of review but one which can only be determined on Appeal. 88. The Respondent relies on the case of Shreeji Enterprises Limited v John Mungai Chai [2020] eKLR, where the Court cited with approval the following decision;- "In Origo & Another V Mungala (2005) 2KLR cited in Jameny Mudaki Asav V Brown Otengo Asava & Another (2015 eKLR the court held as follows: “Our parting shot is that an erroneous conclusion of law or evidence is not a ground for review but may be a good ground for appeal. Once the NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 22

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appellants took the option of review rather than appeal, they were proceeding in the wrong direction. They have now come to a dead end." 89. It is therefore clear that the Applicant is challenging the conclusion of the Judgment rather than identifying any manifest error or omission on the record. 90. The respondent faults the applicant for relying on an Order arising from the Applicant's Application dated 2nd January 2024 37. 91. The respondent asserts that;a. The Applicant filed an AppeaI challenging the decision of the Trial Court given on 18th December 2023 together with an Application dated 2nd January 2023seeking various orders including stay of proceedings and stay of execution, pending the hearing and determination of the Application as well as the Appeal, an order for preservation of the status quo pending the outcome of the Appeal and the Defence and Counterclaim dated 5th June 2023 and filed on 15th October 2023 be deemed as properly filed. b. The Respondent opposed this Application by way of a Replying Affidavit sworn on 28th March 2024. c. The Application came up for directions before Honourable Lady Justice Meoli on 18th April 2024 and sought to find out whether parties are amenable to compromising the Application if sufficient security is offered and parties proceed to Appeal. d. The Respendent's Advocates conceded to a stay being granted on condition that the entire decretal sum be deposited in a joint interest earning account while the Applicant's Advocates opposed the request citing that the matter never proceeded on merit as Interlocutory Judgment was entered in favour of the Respondent. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 23

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e. Following this, the Court addressed itself solely on the lssue of stay of execution and directed inter alla that Ksh. 400,000 be deposited in the Joint Interest earning Account as a condition for stay. 92. The respondent submitted that the applicant's contention that this Honourable Court was bound to refer the lower Court matter back to the Trial Court for hearing on merit on the basis of its Defence and Counterclaim being properly flled ls a clear misapprehension of the law. 93. According to the respondent the Applicant's Defence and Counterclalm could not have been deemed as properly filed as sought in prayer 7 of the Application, since such a request could only be granted after the Judgment had been set aside, which is not the case herein. Furthermore, where a Defence and Counterclalm is flled out of time, as was the case herein, it must be formally admitted on record. 94. In addition, it should be noted that the Applicant's prayer No. 7 in its Application was that "That the Defence and Counterclaim dated 5th June 2023 and filed on 15" October 2023 in MCCC No. E3638 of 2022 be deemed as properly filed." 95. The respondent submits that the above prayer only seeks to deem the Defence and Counterclaim as "properly filed and does not seek to have it deemed as filed within time or to enlarge time for filing it. It further does not seek to set aside the default judgment or any orders flowing from it. Consequently, the consent could not have the effect of reviving the suit or returning the parties to the trial court in the absence of an express order setting aside the default Judgment. 96. Further, the respondent argued that the applicant is inviting this Court to sit on a review of its own decision and order that whereas the Appeal stands dismissed, parties be ordered to proceed with the Trial Court in light of a NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 24

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Consent Order issued at an interlocutory stage. What this means is that the Court should overlook the fact that the default Judgment entered on 28th April 2023 still stands having not been set aside solely because there is a consent order deeming the Applicant's Defence and Counterclaim dated 5th June 2023 as properly filed. 97. If indeed the Applicant believed that the consent order had the effect of returning the parties to the trial court for hearing, one must ask why the applicant did not immediately move the trial court to fix the matter for hearing upon the issuance of that order. The applicant's inaction clearly demonstrates that they understood the consent order to be interim in nature and that the matter could only proceed further depending on the outcome of the appeal. Once the appellate court rendered judgment on 14th May 2025 dismissing the appeal, the consent being inconsistent with the final outcome automatically lapsed. 98. In regard to the error relating to mistakes of an Advocate the respondent submitted that the applicant submits that the Judgment shows a clear mistake in the Court's failure to consider the long-standing principle of law that the error of an Advocate ought not to be visited upon a litigant. This is another clear demonstration of the Applicant being aggrieved by the conclusion of the Judgment and if this Honourable Court was to review the Judgment within the scope sought by the applicant, it would be usurping the powers of the Court of Appeal. 99. The Respondent submits that the Applicant's reliance on the alleged "mistake of counsel" does not, in itself, disclose any error or omission on the part of the Court but rather amounts to a plea for indulgence. 100. The Court have repeatedly emphasized that while the mistakes or negligence of an Advocate should not be visited upon the Client, mistakes NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 25

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amounting to bona fide mistakes are punishable as professional negligence. Further, the Applicant remains the owner of the suit and the prosecution thereof is his responsibility. 101. In the present case, the Applicant's advocates were seasoned practitioners well aware of the applicable rules on computation of time and compliance with court orders. Having been indulged by the trial court on two occasions, their continued delay cannot be excused as an innocent mistake. 102. To buttress the above, the Respondent relies on the case of Edney Adaka Ismail v Equity Bank (2014) eKLR where the court stated that: "It is true that where the justice of the case mandates, mistake of the advocate even if they are blunders, should not be visited on the clients when situation can be remedied by costs...However, it is not in every case that a mistake committed by an advocate would be a ground for setting aside orders of the court. I fully agree with the above holding. It is not enough for a party to simply blame the Advocate but must show tangible steps taken by him in following up his matter.” 103. Further, according to the respondent the applicant can seek reprieve against its Advocate who is mandated to take out an indemnity cover to cater for instances such as those that led to the filing of the Appeal and the current Application. 104. The respondent urged this Honourable Court to be guided by the Court's decision in Michael Bett Siror& Betham Investment Limited v Veronicah Chemjor[2024] eKLR,where the Court held that: "...it is not meritorious at all for any party to aver or depone that his leamed counsel made an error or mistake which should not be visited on him.Courts have moved and should continue to move away from those NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 26

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days where litigant's blanket unsubstantiated claims of (an) error(s) having been committed by learned counsel used to be waved before the Court like the wave offering (of the first fruits) used to be done in the house of Israel (Exodus 29:24; Leviticus 8: 27) and their sacrifice would be accepted of God for a blessing of the harvest they would make. Courts should Interrogate whether the 'wave offering(s)' of litigants when it comes to such claims is/are pure, untainted and true or is (mixed with) poison subtly designed and made (up) for purposes of killing the adverse party's live fruits of Judgment or decision. In this day and age of transparency and free exchange of information, it is Important that when a party alleges that his learned counsel made a mistake in the process of representing him or her, he should point out with specificity what kind of a mistake that was and call upon the advocate to own to it. If the advocate does not own It, the burden lies on the party alleging that his learned counsel made the error or mistake to convince the Court to satisfaction that Indeed the learned counsel made the mistake alleged. Otherwise, a party asserting an error on the part of learned counsel must bear the mistake: there should be no scapegoats, no hiding behind learned counsel, and no blanket blame." 105. According to the respondents it is evident that the applicant is challenging the impugned Judgment for the Court's failure to consider the consent order deeming its Defence and Counterclaim properly filed and for not excusing counsel's mistake. 106. These cannot be grounds of review as challenging the Judgment on the basis of how the Court interpreted and weighed the evidence is basis for an appeal and not review. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 27

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107. To buttress the above, in the case of Shreeji Enterprises Limited v John Mungai Chai (supra) Hon. Justice R Nyakundi in dismissing an application for review on account of an error held that: "I have carefully considered the submissions of the applicant and the respondent and do find that the application is based on the fact that the Learned Judge did not consider crucial evidence. This is not a ground for review but it is a ground for appeal. Moreover, failure to analyze evidence is not a ground for review. Consequently, I find that there was no error apparent on the face of the record as the appellant's main contention is that the Learned trial Magistrate should have considered the expert opinion given by the appellant's physician and not the one given by the respondent's, this is a good ground for appeal and not for review." 108. Further, an appeal and a review cannot be filed concurrently as was held in the case of James K. Chepkonga & 5 Others v Francis Kiplagat Cheruiyot (Sued as the Administrator of the Estate of Joseph Kuruiyot Sitienei) & 3 Others [2025] eKLR,wherein Hon. Justice Yano in dismissing an Application for review observed that: "In closing, I have noted from a perusal of the Court record that the Applicants herein filed a Notice of Appeal dated 18.12.2024 seeking to appeal against the entire Ruling issued on 16.12.2024. It is necessary to emphasize that the said ruling is also the subject of review in the instant application. Order 45 Rule 1 (a) of the Civil Procedure Rules provides that review is available to a person aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred. In essence therefore, this implies that the option for review is an alternative to the option for an appeal and thus an appeal and review NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 28

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cannot be filed concurrently against the same ruling and order of 16.12.2024" 109. Similarly, in this case, the Applicant filed and served a Notice of Appeal dated 15th May 2025 and the Respondent equally filed a Notice of Address of Service dated 201h May 2025 in compliance with the Court of Appeal Rules. This only goes to show that the Applicant was intending to file an appeal and has not satisfactorily demonstrated any mistake or error on the face of the record to warrant the review of the Judgment dismissing its Appeal. 110. This Honourable Court will note that the Applicant did not offer any merited explanation as to why they did not file the Defence within the stipulated timelines despite being indulged on two occasions. This Court was correct in finding that the Applicant was a beneficiary of the Court's favourite exercise of discretion as held below: "The appellants having approached the trial in the first instance to set aside the default judgment, were under obligation to ensure that the orders granted in their favor were specifically complied with. The trial court had specifically ordered that the appellant was to file his defence within 14 days from the date of the Ruling and in the event of non-compliance with that order the orders setting aside would lapse automatically. The appellant did not file the defence within the timeline specified by the court thus the setting aside orders issued on 29th September 2023 lapsed automatically. The claim by the appellants that the court in declining to extend time was injudicious exercise of judicial discretion is thus made without merit. The application for extension of time is a prayer for equitable relief by the court. No party has an automatic right to an order for extension of time." NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 29

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"The appellant was seeking to have the court extend what I would consider to be judicial mercy upon him. He had already been granted an order for setting aside. The court was very reasonable in setting aside the default judgment. He however went and slept on the order. The principles of equity are clear that equity does not come to the aid of the indolent. The appellant in this courts view was guilty of indolence and he stretched his luck too far." "In the instant case the explanation offered for the delay in filling the defence was in my view unsatisfactory thus the court below was correct in dismissing the application. Courts do not issue orders in vain and court orders must be obeyed. It would be tantamount to vexing a court for a litigant to seek to set aside a default judgement and upon being granted the order to file a defence the party goes to slumberland only to resurface with an application for extension of time of the setting aside order. That in my view would be a classic case of encouraging indolence in the judicial process by litigants. Court orders must mean something to all and particularly to a party in whose favor they are issued. The appellant here was guilty of laches and he must live with the consequences of his inaction." 111. The Respondent urges this Court to find that it was correct in its findings and that the Applicant's contentions do not fall within the threshold of what amounts to an apparent error on the face of the record. 112. As to what was the effect of the consent order arising from the application dated 2nd January 2024.The respondent submitted that the applicant is attempting to mislead this Honourable Court by suggesting that a consent order issued at an interlocutory stage can override or supersede the final judgment of the Court. Contrary to the Applicant's submissions at paragraph 69, the consent order did not have the effect of admitting the NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 30

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Defence and Counterclaim dated 5th June 2023 into the Trial Court's record. 113. The applicant contends that, by virtue of the consent order, the Defence and Counterclaim were deemed properly filed and that this Court ought therefore to have allowed the Appeal to pave the way for the suit to proceed on its merits. This contention reflects a clear misapprehension of the law. The only circumstance in which the parties could have proceeded to a hearing in the Trial Court was if the default judgment entered on 28 th April 2023 had first been set aside. 114. The Respondent reiterates that prayer 7 of the Applicant's Notice of Motion dated 2nd January 2024 sought the following relief: "That the Defence and Counterclaim dated 5th June 2023 and filed on 15th October 2023 in MCCC No. E3638 of 2022 be deemed as properly filed." 59. Notably, the Court was not invited to set aside the ex parte judgment entered by the Tria Court on 28 th April 2023. The Applicant's Advocate candidly admitted that the Defence and Counterclaim had been filed outside the 14 days granted by the Court. Having failed to seek leave for enlargement of time or admission of the Defence and Counterclaim on record, those pleadings remained irregular and without legal effect. 115. While the purported consent order was issued at an interlocutory stage, this Honourable Court, in determining the Appeal, expressly considered the Applicant's prayer that the Defence and Counterclaim be deemed properly filed and declined to grant that or any other relief sought in the Memorandum of Appeal dated 29th December 2023. 116. Even assuming, without conceding, that the Defence and Counterclaim were deemed properly filed pursuant to the consent order, such an order could not take effect in the absence of a corresponding order setting aside NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 31

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the default judgment. Without the judgment being vacated, there was no subsisting suit before the Trial Court upon which the Defence and Counterclaim could operate. 117. Moreover, given that the Defence and Counterclaim were filed outside the period allowed by the Court, the Applicant would still have been required to move the Court formally for enlargement of time and for the pleadings to be admitted on record. Without such an application and leave of Court, the Defence and Counterclaim remained irregular and incapable of grounding any proceedings. 118. It is therefore difficult to appreciate the basis upon which the Applicant now invites this Honourable Court to review its decision solely on the strength of an interlocutory consent order and an appeal to sympathy for being condemned unheard, while disregarding their own non-compliance with Court orders, procedural requirements and failure to act diligently. 119. The Respondent further observes that while the Applicant has made reference to several authorities, none have been annexed or availed to the Court. 120. The respondent, on the issue of costs relied on the provisions of Section 27 (1) of the Civil Procedure Act provides as follows: "Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers; NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 32

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provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason7 otherwise direct." 121. In the case of Cecilia Karuru Ngayu vs Barclays Bank of Kenya & another [2016]eKLR, the learned Hon. Justice Mativo relied on the case of Republic vs Rosemary Wairimu Munene,Ex-Parte Applicant Vs Ihururu Dairy Farmers Co-operative Society Ltd wherein the Court held; "The issue of costs is the discretion of the court as provided under the above section. The basic rule on attribution of costs is that costs follow the event.....It is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case" 122. The Learned Judge further stated that; "Thus, it is imperative to bear in mind the various steps taken by the parties in the case so as to appreciate the trouble taken by both parties since the suit was filed." 123. The Respondent submits that the present Application is misconceived, frivolous, and an abuse of the Court process. The Applicant has sought a review while simultaneously filing a Notice of Appeal and the Application fails to demonstrate any apparent error or omission on the part of this Honourable Court to warrant the grant of orders sought. 124. The Applicant urges this Court to dismiss the same with costs as the Applicant's actions necessitated it to defend the Application at a cost. 125. It is the Applicant's humble submission that this Honourable Court do award the Applicant the costs of this Application. 126. The respondent closed its argument by citing the case of Loise Walrimu Mugweru &2 Others (Being the Administrators of the Estate of NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 33

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Maaka M. Mugweru -Decensed) v National Land Commission & 5 Others [2025] eKLR, where the Learned Judge in dismissing an application for review held that: "If the Applicants were unhappy with the orders of stay as granted, they ought to appeal against the said order. The current application, though couched as a review application, is actually aimed at asking the court to reconsider the merits of the application for stay of execution which had already been determined. In light of the foregoing analysis, I find no error or mistake in my ruling delivered on 20" June 2024. I also do not see any sufficient cause to warrant setting aside or vacating the orders of stay of execution pending appeal, as granted on 20"h June 2024.Consequently, the current application is devoid of merit, and I proceed to dismiss It with costs to the 3m and 4h Respondents." 127. The Respondent further submitted that they concur with this Honourable Court's Judgment as It was fair and just. The Applicant has failed to demonstrate any error or omission on the part of the Court. The Judgment correctly observed that the Applicant had already benefitted from the Courts discretion for extension of time to file its Defence and Counterclalm on two occasions yet failed to comply within the stipulated timelines. The Respondent fully concurs with the Court's finding that the Applicant was guilty of laches and must bear the consequences of its own inaction. 128. The above cited precedents and statutes apply with equal force to the matter herein and subsequently the Applicant urges this Honourable Court to be guided by the same to hold that the Application lacks merit and proceed to dismiss the same with costs to the respondent. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 34

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ANALYSIS AND DETERMINATION 129. The applicant has urged this court to consider its judgment of 15 th may 2025. 130. The applicant has hinged the review application on two grounds namely;a). that there is an error apparent on the face of the record b). that this court failed to uphold the long -established principle that mistakes of counsel should not be visited on an innocent client. 131. The scope of a review is well settled in law. Order 45 Rule 1of the Civil Procedure Rules provides;“Application for review of decree or order [Order 45, rule 1] (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. (2) 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 NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 35

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respondent, he can present to the appellate court the case on which he applies for the review.” 132. Further, the Civil Procedure Act 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.” 133. A litigant seeking the review of the decision of the court must bring his case within the confines of the statutory provisions. 134. In Republic v Public Procurement Administrative Review Board & 2 others [2018] eKLR it was held: -Section 80 gives the power of review and Order 45 sets out the rules. The rules restrict the grounds for review. The rules lay down the jurisdiction and scope of review limiting it to the following grounds; (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; (b) on account of some mistake or error apparent on the face of the record, or NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 36

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(c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.” 135. The applicant in this matter was the appellant and argues that in dismissing the appeal this court did not consider a consent that had been entered between the parties and which had not been set aside thus the omission by the court constituted an error apparent on the face of the record. 136. This court has perused the original record of the proceedings before the Honorable Lady Justice Meoli on 18th April 2024. The consent alluded to by the applicant was recorded on that date and it reads as follows: ORDER “by consent Motion dated 2nd January 2024 is allowed subject to the applicant depositing the sum of Kshs.400,000 into a joint interest eraning account within 30days. Costs in the cause” 137. The application under reference in the order sought the following orders: 1. This Application be certified urgent and heard ex-parte at the first instance. 2. There be a stay of proceedings in NAIROBI MCCC NO. E3638 OF 2023 pending the hearing and determination of this Application inter partes. 3. There be a stay of execution of the ex-parte Default Judgment entered in NAIROBI MCCC NO. E3638 OF 2023 on 28th April, 223 pending the inter partes hearing of this Application. NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 37

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4. There be a stay of execution of the ex-parte Ruling Delivered by the Hon. C.K.Cheptoo NAIROBI MCCC NO. E3638 OF 2023 on 18th December, 2023 and any consequential orders arising therefrom pending the inter partes hearing ofthis Application. 5. This Honorable Court be pleased to issue an Order for the preservation of the status quo pending the outcome of the Appeal. (emphasis added) 6. There be a stay of proceedings and execution of the ex-parte Default Judgment entered in NAIROBI MCCC NO. E3638 OF 2023 on 28th April, 2023 pending the hearing and determination of the Appeal. 7. The Defence and Counterclaim dated 5th June, 2023 and filed on 15th October,2023 in MCCC NO.E3638 OF 2022 be deemed as properly filed. 8. The cost of this Application be in the cause. 9. Such other and further Orders and direction as may appear to this Honorable Court just and convenient to grant in the circumstances. 138. It is clear from a reading of Order No.5 on the face of the application that the consent did not dispose of the appeal but effectively preserved the status quo of the matter pending the outcome of the appeal. It is therefore not correct for the applicant to argue that had the court considered the consent it would have send the parties to the lower court for trial. Nothing would have been easier than for the court that recorded the consent to have sent the parties to the lower court for hearing straightaway if the argument by the applicant were to be correct. 139. If this court was to uphold the argument by the applicant it would be akin to holding that the consent order determined the appeal yet the wording of the application dated 2nd January 2024 is unequivocal. It was only meant to NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 38

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preserve the status quo to await the determination of the appeal and nothing more. 140. Further, the existence of the consent is not a new matter and the applicant could have as well advanced his arguments within the appeal as to the effect of the consent order he cannot possibly argue that he has just discovered the existence of the consent order which would have automatically resulted into the matter being transmitted to the Lower court for hearing. In fact, the learned Judge did not allude to any such consequence of the order. 141. This court has considered the arguments by both parties in respect of the consent and the court is inclined to agree with the respondent that the subsistence of the consent was predicated upon the pendency of the appeal and that once the appeal was determined the consent effectively evaporated since its life was dependent on the outcome of the appeal. The court therefore finds that there is no error apparent on the face of the record on account of the consent to justify a review of the judgment delivered by this court on 15th May 2025. The application therefore fails on that ground. 142. turning on to the second ground for review advanced by the applicant this court finds that what the applicant is effectively doing is to argue substantively on the question whether or not the mistakes of a counsel can be visited on his client, a matter that this court considers a challenge of the substantive judgment which cannot be done by way of a review but an appeal. The applicant is basically asking this court to sit on appeal on its own decision which invitation this court respectfully declines. 143. The respondent in his submissions alluded to a notice of appeal filed by the applicant and that fact was not denied by the applicant meaning therefore the applicant is still keen on pursuing an appeal. In that case therefore the NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 39

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proper court to deal with the question of mistakes of counsel being visited on their own innocent client is a matter for the Court of Appeal to deal with since this court has already pronounced itself on the issue of mistakes by counsel. 144. In Pancras T. Swai v Kenya Breweries Limited [2014] eKLR the Court of Appeal held:-Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limps therein stated or “for any sufficient reason……………………….” 145. This court finds that the applicant has not provided any sufficient reason for this court to review its decision. The fact that mistakes were made, and in the circumstances captured in the judgment, cannot be a sufficient reason for review by this court. If the applicant is disatisfied with the decision of the court on the issue of mistakes, the forum for resolution of that grievance is the Court of Appeal. 146. The view of this court is that the applicant is seeking to reopen the matter and have a second bite at the cherry. The law is settled that a review application that seeks to achieve such a purpose must be declined. In the case of Evan Bwire V Andrew Aginda Civil Appeal No. 147 of 2006 cited in the case of Stephen Githua Kimani V Nancy Wanjira W aruingi T/A Providence Auctioneers (2016) eKLR the Court of Appeal held as follows: "An application for review will only be allowed on strong grounds particularly if its effect will amount to re-opening the application or case afresh. In other words, I find no material before me to demonstrate that the applicant has demonstrated the existence of new evidence which he could not get even after exercising due diligence.” NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 40

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147. Looking at the issues raised by the applicant, I am unable to see how any of the grounds and allegations fall within the parameters of the jurisdiction of review. At best, the notice of motion is an appeal, disguised as an application for review. The applicant is clearly looking to have the Court reconsider and relook the entire judgment and overturn it, which this Court has no jurisdiction to do. 148. In Fredrick Otieno Outa v Jared Odoyo Okello & 3 Others, SC Petition No. 6 of 2014; [2017] eKLR, this Court held that it does not have the jurisdiction to sit on appeal over its own decisions. Further, that an application for review is not an appeal and it is not meant to give a litigant another bite at the cherry. 149. The applicant has thus not presented a compelling case for a review of the judgment of this court and all the issues he has raised are matters that can only be resolved by way of appeal. 150. The application has no merit and it is hereby dismissed with costs to the respondent. 151. It is so ordered. DATED, SIGNED and DELIVERED VIRTUALLY at NAIROBI this 15TH day of JANUARY, 2026. A. M. MUTETI JUDGE In the presence of: Habiba: Court Assistant Shehunda for Appellant/Applicant NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 41

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Kisala h/b Kimathi for Respondent NAIROBI HC CIVIL APPEAL NO E 007 OF 2024 - JUDGMENT, Interspar Limited –vs ARM Cement PLC (In Liquidation) 42

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