Wanjiru v Kimani

3. The Applicant attached an annexture marked “MBW-1” which is a copy of the said account reconciliation, which she states was duly received by the Respondent’s Counsel. She further avers that the said evidence could not have been placed before the Honourable Court during the hearing as the reconciliation was undertaken after the delivery of the Judgment in this matter. The Respondent’s case 4. The Respondent led a replying adavit sworn on 27/8/2026 in which opposes the said application on several grounds. One, he avers that the applicant has not demonstrated enough reasons to warrant orders for review as sought. It is his evidence that for an application for review, an applicant has to demonstrate that the said the new evidence which has been discovered is one which could have not been discovered before the hearing which he states in this case, the said annexture MBW-1 is not a new and material evidence discovered as it is a document which was prepared by the parties in a meeting after the judgment was delivered. 5. Further, that if any thing, the new evidence which has been discovered must be one which will have an inuence on the case at hand which he states the Applicant has not shown if the said document will have such inuence. Secondly, the respondent raises the issue of time and states that the application though dated 26/5/2026, was led on 28/7/2026, a period of two months since delivery of the judgment and as such inordinate delay. Submissions by the Applicant 6. The Applicant led her submissions dated 28/8/2026 in which they list two issues for determination as follows: i. Whether the Applicant has demonstrated sucient grounds for review of the Judgment. ii. Whether the applicant is entitled to a stay of execution pending the hearing and determination of the application. 7. In support of her submissions on why the court should grant orders for review. the Applicant relies mainly on two authorities namely Accredo Ag & 3 Others Vs. Steano Uccelli & Another (2017) eKLR a decision by the court of appeal which listed the three main grounds for granting an order of review: a) There has been 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 b) There is some mistake or error apparent on the face of the record, or c) There exists sucient reason to review the decree/order.” 8. The second authority is a high court decision by Justice Mativo in Nasibwa Wakenya Moses vs. University of Nairobi & another [2019] KEHC 11472 (KLR) in which the judged emphasized the requirements set in the proviso of Order 45 Rule 1. It is the submissions of the Applicant that the evidence upon which the Applicant relies on is the account reconciliation undertaken after delivery of the Judgment and that the reconciliation could therefore not have been produced during the hearing of the matter because it did not exist at the time the Court heard and determined the dispute herein. 9. The Applicant further submitted on the second issue on stay that if the court will not grant the stay orders sought then they will suer irreparable harm which cannot be compensated by way of damages. Respondent’s submissions 10. The Respondent led their submissions which was mainly on the issue if the Applicant has demonstrated enough grounds for granting of an order for review. The Respondent submits that an https://new.kenyalaw.org/akn/ke/judgment/scc/2026/243/eng@2026-09-11 2

page 2 of 6

application on the ground of discovery of new and material evidence requires three elements: rst, that the evidence is new and could not have been produced at the time of hearing; second, that the evidence is material; and third, that the application was led without unreasonable delay. The Respondent submits that the Applicant has failed to satisfy any of these three conditions. 11. They rely on several authorities namely: Rose Kaiza vs. Angelo Mpanjuiza [2009] KLR which was cited in D.J. Lowe & Company Ltd vs. Banque Indosuez London Distillers (K) Ltd vs. CS, Ministry of Education & 4 others and Nyong’o & Others vs. Attorney General [2026] eKLR Issues for Determination and Analysis 12. 13. Having looked at the application and the response therein, together with the submissions, there are only three issues which the court would need to determine. The issues are: a. Does the applicant warrant the orders of review? b. Should there be stay of execution of the judgment and decree? c. Who bears the costs of the application? I would therefore analyse the above issues which I believe dependent on each other. A. Does the applicant warrant orders of review? 14. For starters, all the proceedings in the Small Claims court are guided by the Small Claims Court Act. The Act in its preamble provides that it is “ An Act of Parliament to establish Small Claims Court: to provide for the jurisdiction and the procedures of the Court and for connected purposes”. It is the Small Claims Court Act which is the guiding Act on all issues before the Small Claims Act. The authors of the said Act never intended to have the said court to be guided by the Civil Procedure Act or the Civil Procedure Rules, and I truly believe that had they intended so, they would have easily put it down in the Act. 15. Justice Musyoka addressed this issue in Nalianya vs. Mwanza [2025]KEHC 3432 (KLR) as follows: Regarding applicability of the Civil Procedure Rules to the process at the Small Claims Court, the answer would lie with the provisions of the Small Claims Court Act. Section 17 provides that “… the Court shall have control of its own procedure in the determination of claims before it and, in the exercise of that control, the Court shall have regard to the principles of natural justice.” That provision does not tie the Small Claims Court to the Civil Procedure Act, Cap 21, Laws of Kenya, or the Rules made under it. The Small Claims Court Act, and the Rules made under it, is a complete code of procedure, which does not require fallback to the Civil Procedure Act and its Rules, except in instances where the Small Claims Court Act or its Rules, specically provides that the Civil Procedure Act and its Rules apply, such as at Rule 30 of the Small Claims Court Rules, with respect to appeals. 16. Therefore, for the Applicant to bring this application under Order 45 Rule1 of the Civil Procedure Rules, then they have denitely brought the same on wrong provisions of the law. The correct provision should have been Section 41 of the Small Claims Court Act as read with Rule 29 of the Small Claims Court Rules. It is the Section which deals with the review of orders or awards of the court. The section provides as follows: 1. An Adjudicator may, on application by any aggrieved party or on his or her own motion, review any order of the Court on the ground that— a. the order was made ex-parte without notice to the applicant; https://new.kenyalaw.org/akn/ke/judgment/scc/2026/243/eng@2026-09-11 3

page 3 of 6

2. 17. b. the claim or order was outside the jurisdiction of the Court; c. the order was obtained fraudulently; d. there was an error of law on the face of the record; or e. new facts previously not before the Court have been discovered by either of the parties. The application referred to under subsection (1) shall be made within thirty days of the order or award sought to be reviewed or such other period as the court may allow. On the other hand Rule 29 of the Small Claims Court Rules provides: SUBPARA 1. The Court may review any decree passed or order given in proceedings under the Act on the written request of any party aggrieved by such decree or order where it is shown to the satisfaction of the Court that the decree or order sought to be reviewed— SUBPARA a. has an error apparent on the face of the record; or SUBPARA b. has a clerical or arithmetical mistake. SUBPARA 2. A request for review of a decree or order under this rule shall be made within three (3) months of the passing of the decree or of the making of the order in issue, and may be made— SUBPARA a. orally in court; or SUBPARA b. in writing addressed to the Court and served on all parties to the proceedings. SUBPARA 3. Nothing in this rule prevents the Court, of its own motion, from reviewing and making a correction of any clerical or arithmetical mistake within thirty days of passing the decree or making the order in issue. 18. A reading of the two provisions indicate some similarity with the provisions under Section 45(1) of the Civil Procedure Rules and relevant to this case would be Section 49(1)(e) which provides that one ground for reviewing of an order by an adjudicator would be if there are new facts previously not before the Court have been discovered by either of the parties. This is slightly dierent though, in the language used under Order 45 for the same requirement for review. The Order provides for “a 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 the decree was passed…” 19. Thus, for an application for review under the Small Claims Court, there are mainly two issues which the court needs to determine and they are: (1)new facts have been discovered (2) the new facts were not before court and (3) the application has been brought within 30 days from the date of the award. 20. Looking at the application and specically the Further Adavit sworn on 25/8/2026, the applicant states that the reconciliation took place after the judgment had been delivered. It was after the judgment that they sat down and prepared the document MBW-1 which they now wish to produce as evidence https://new.kenyalaw.org/akn/ke/judgment/scc/2026/243/eng@2026-09-11 4

page 4 of 6

before court. One would ask, can you “discover a document after judgment” yet you made the document after the said judgment? The applicant went and worked on the document and then made it available, how then would it be a new discovery warranting to be placed before the court? I do not believe that was the intention of the drafters of Section 41(1)(e) of the Small Claims Court Act. The document or fact must only be that which has been discovered and not that which the parties have made. 21. Justice Musyoki David Ngugi Mburu vs. Mary Gakuru, Thika High Court Civil Appeal No. E233 of 2024 emphasized this position in the following words: In my understanding, for the application for review under Section 41(e) which the appellant is relying on to succeed, the new fact must have been discovered after the ruling and should have been in existence as at the time the suit was alive and not what comes to exist after the events leading to the decision being sought to be reviewed. In my opinion, the law did not intend to give parties the window to go on making or initiating existence of facts which would justify a review after the ruling or decision is made. If that would be the case, it will amount to abuse of the court process as it would allow parties to revive cases by drawing new documents as in this case which would in my view lead to opening of a pandoras box. 22. In D. J. Lowe & Company Ltd vs. Bonquo Indosuez, Nairobi Civil Application No. 217 of 1998 the Court of Appeal sounded a caution in such applications and stated that:Where such a review application is based on fact of the discovery of fresh evidence 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 dierent complexion. 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. 23. I believe I have said enough to show that the document MBW-1 was not a new document which has been discovered and or that it is very important to change the outcome of the case herein. Thus, I will reject the application based on the foregoing analysis. 24. Be that as it may, and assuming I was wrong, which I am afraid I am not, I would still have rejected the application pursuant to Section 41(2) which requires that an application for review SHALL (mandatory) be made within 30 days of the award. The judgment in the matter was made on 15/4/2026 and 30 days from the said date would be 15/5/2026. The application herein was however led on 28/7/2026 which was way past the required 30 days window. B. Should there be stay of execution of the judgment and decree? 25. The applicant also sought for stay of execution of the judgment issued on 15/4/2026. Two issues are worth mentioning in this. One, the stay of execution is not based on anything, to mean it is not know for what period the stay sought would last. Secondly, the Applicant herein is the one who was awarded KShs.100,000 by the court vide the judgment dated 15/4/2026 and as such I wonder in what manner they would suer if the judgment is executed. Does the Applicant mean that they need a court order to stop them from executing their own decree? To whom will the order be directed to? I say no more. C. Who bears the costs of the application? 26. I would award the Respondent in this case the costs of this application. The same is assessed at KShs.10,000. I believe there is no need to justify the costs from the analysis given above. https://new.kenyalaw.org/akn/ke/judgment/scc/2026/243/eng@2026-09-11 5

page 5 of 6

Conclusion 27. In conclusion, the application dated 26/5/2026 is hereby dismissed with costs to the Respondent which costs are assessed at KShs.10,000. 28. Those are the orders of the court. RULING READ, SIGNED AND DELIVERED IN VIRTUALLY AT ELDORET THIS 11TH DAY OF SEPTEMBER, 2026 W.O KOMBWAYO, ADJUDICATOR Delivered in the presence of: CA- Omar Ms. Kiplimo for the Applicant Ms. Kemboi for the Respondent https://new.kenyalaw.org/akn/ke/judgment/scc/2026/243/eng@2026-09-11 6

page 6 of 6