Matini v Muthoni & 2 others

It was contended in support of this application that: a) That the 2nd and 3rd Defendant were join owners of motor vehicle Registration No. KCD 184T. b) That the 2nd Defendant was a financier in respect to the said motor vehicle. c) That the other motor vehicle involved was motor vehicle registration No. KBA 383 F owned by the 1st Defendant. d) That owners of both motor vehicles registration KCD 184J and KBA 383F were held 50% liable for the accident. e) That the Plaintiff/Respondent has since executed against the 1st and 2nd Defendants whereby the letter proceeded to pay 50% of the claim for Kshs147,387/= quoted in the warrant as award of motor vehicle Registration No. KCD184t. f) That despite the 2nd Defendant paying half of the decretal sum, the Plaintiff/Applicant has also taken out warrants against the 3rd Defendant, his co-owners of motor vehicle registration No. KCD 184T yet this would lead to a presumption that the motor vehicle registration No. KCD 184T is wholly owned by the said 2nd Defendant. This application was opposed by the Plaintiff (Respondent). He filed a replying affidavit sworn on 19/6/2026, Defendant entered appearance. a) That the 1st and 2nd Defendants did not entered appearance in the case. BGM CMC CC NO. E169 OF 2021 RULING 2|Page

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b) That at no time did counsel on record for defence act for both the 2nd and 3rd Defendants and so the allegations that both have settled their bargain is misleading. c) That the application does not meet the conditions for review. d) That the application is filed too late after the judgment was entered long back on 17/7/2025. e) That he needs the entire sum to cater for medical expenses for the severe injuries he sustained. He thus prayed for dismissal of his application. Issues for determination 1) Whether this application meets the threshold for review. 2) Whether judgment dated 17/7/2025 should be reviewed as prayed. 3) Who should bear costs of this application. Determination The application before court is for review. The parameters to look for in applications seeking review of decree and orders per order 45 of the Civil Procedure Rules are: i) Discovery of new and important matter that was not in the Applicant’s knowledge even after the exercise of due diligence or which he could not produce by the time the decree or order was passed. ii) An account of mistake or error apparent on the face of the record; or BGM CMC CC NO. E169 OF 2021 RULING 3|Page

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iii) For any other sufficient reason. From that provision, review may only be don where no appeal has been prepared against the subject decision. See In Re Estate of Alice Mumbi Gakuo (deceased) (Succession Cause No. 294 of 2016) [2023] KEHC 18447 (KLR) And Mvao Ltd V First American Bank of Kenya Ltd & 2 Others (Civil Appeal 39 of 2002 (2003) KECA 175 (KLR). In this case, the allegation or ground raised by the Applicant in favour of review of the judgment and decree is that there is an error apparent on the face of the record. It was explained that motor vehicle registration No. KCD 184T was owned by the 2 nd and 3rd Defendants while motor vehicle registration No. KBA 383 F was owned by the 1st Defendant. Both motor vehicles were involved in the accident and their owners were found 50% liable for the accident. Indeed, motor vehicle registration number KCD184T was owned by the 2nd and 3rd Defendants per the police abstract on record. The other motor vehicle registration No. KBA 383T was owned by the 1st Defendant. It follows that it is the 2 nd and 3rd Defendant (Applicants) who were to share liability jointly at 50% as the 1 st Defendant shouldered the other half separately and singularly or alone on the other part. It was not supposed to be vice versa and so, I would find that this BGM CMC CC NO. E169 OF 2021 RULING 4|Page

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application is merited. That error apportioning liability against the 1st and 3rd Defendants jointly at 50% as the Defendant shouldered the other half alone was error apparent on the face of the record that calls for correction under Order 45 Rule 1(1) (a) and (b) of the Civil Procedure Rules. Facts concerning the registration status of the 2 nd and 3rd Defendant upon motor vehicle registration No. KCD 184T were not contended by the Plaintiff/Respondent who merely concentrated on how the judgment was entered in default of appearance by both. Although that is true, and further to that, only the 3 rd Defendant (Applicant) had representation before judgment, these are matters that do not in any way change the registration and ownership of status of motor vehicle registration No. KCD184T. Furthermore, the court is under a duty to correct any error in the decree or order that is inconsistent with its substance where the same arises due to inadvertent mistake or error. See National Bank of Kenya Ltd vs. Njau (Civil Appeals 211 of 1996) [1987] KECA 71 (KLR). In the case, the court held that at paragraph 16 that a review may be granted whenever the court considered that it is necessary to correct an apparent error or omission on the part the court. The error or omission musts be self-evident and should not require an elaborate argument to establish. BGM CMC CC NO. E169 OF 2021 RULING 5|Page

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This is indeed the case herein. The error sought to be corrected in respect to the liability on the part of owners of motor vehicle registration No. KCD 184T is self-evident and in actual fact uncontested to the extent that it requires no elaborate argument to establish. Therefore, I allow this application and make orders correcting the decree herein as follows: i) That the 1st Defendant to bear 50 % liability alone on one part. ii) That the 2nd and 3rd Defendants to bear the other 50 % if the liability on the other part. iii) That parties to bear their own costs since the error in issue was occasioned by neither the court. Hon. R. B. N. Maloba SPM 20/8/2026 Ruling delivered in Open Court tis 20th day of August 2026 in the presence of: Mr. Wanjala for Mr. Onchiri for Respondent. N/A for Ongong’a for the Applicant. Hon. R. B. N. Maloba BGM CMC CC NO. E169 OF 2021 RULING 6|Page

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SPM 20/8/2026 BGM CMC CC NO. E169 OF 2021 RULING 7|Page

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