https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10617

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. 95 OF 2019** **CIC GENERAL INSURANCE LTD..…..…..…….APPELLANT/RESPONDENT** **VERSUS** **CHUKA FARMLINE STORES LTD..…....…..1ST RESPONDENT/APPLICANT** **CO-OPERATIVE BANK OF KENYA LTD…………….….2ND RESPONDENT** **TRACK & TRACE LTD………......……………………….…..2ND RESPONDENT** **RULING** 1. The 1st Respondent/applicant filed a Notice of Motion dated 13th January, 2026 seeking the following reliefs by way of review of the Judgment of the Court delivered herein: * + 1. *Spent.* 2. *An Order be and is hereby issued reviewing the Judgment of the Honourable Justice Andayi W.F. to the extent that prayer (b was not a prayer for special damages for a sum of Kenya Shillings One Million Seven Hundred and Thirty-Three Thousand Five Hundred and Thirty-Nine and Eighty Cents (1,733,539.80/-).* 3. *An Order be and is hereby issued rectifying the record that the sum of Kenya Shillings One Million Seven Hundred and Thirty-Three Thousand Five Hundred and Thirty-Nine and Eighty Cents (1,733,539.80/-) was pleaded and that the lower court was rightful to grant.* 4. *An Order be and is hereby issued that the sum of Kenya Shillings One Million Seven Hundred and Thirty-Three Thousand Five Hundred and Thirty-Nine and Eighty Cents (1,733,539.80/-) having not formed part of the grounds of Appeal the same is allowed without a rehearing.* 5. *Cost of this application.* 2. The effect of the review will be to reinstate an award of Ksh.*1,733,539.80/-)* which the judge (W.F. Anday, J.) who heard the appeal dismissed as having not been pleaeded in the plaint before the trial Court. The application calls for the examination the record of the trial court and a determination that the claim was not a claim in special damages. 3. Although the applicant did not seek that the application be heared by the judge who delivered the Judgment in the matter, an Application for review based on grounds ***“other than the discovery of such new and important matter or evidence, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree”*** are required to be heard wherever possible by the Court that made the decision sought to be reviewed, and such Court may only be differently consititued of the judge who made eh decision is away from the station or has ceasd to exercise jurisdiction. 4. See Order 45 Rule 2 of the Civil Procedure Rules, which provides as follows: *“****2. To whom applications for review may be made [Order 45, rule 2]*** *(1)An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree,* ***shall be made only to the judge who passed the decree, or made the order sought to be reviewed.*** *(2)If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.* *(3) If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.”* 1. In this case, the Court has considered that while the judge who heard the appela is from a different station of the High Court, the profound question of the review for the reinstatement an award of Ksh.1,733,539.80/- made by the trial court and which was ubject tothe determined appeal should be considered by the Judge who is available at another station of the same Court and the short delay that may be occasioned in referring the application for his detemination is in justifiable in hte interest of justice in the case. 2. The Court considers it appropriate to refer this matter to the appeal court which heard the appeal in terms of Order 45 Rule 2 of the Civil Procedure Rules and to avoid the prospect of this court sitting on appeal from a judge of the same Court as alluded by the Respondent. To avoid any prejudice to any party and any embarrassment to the Court which eventually determines the application, the Court does not make any comment on the application ofr the submissions filed by the parties thereon. The Court fiel shall be forward to the for purposes of considereing and determining the application for review. **ORDERS** 1. Consequently, pursuant to Order 45 Rule 2 of the Civil Procedure Rules, the Court file shall be sent to the Judge who heard and determined the appeal herein for consideration of teh application for review of the Judgment. 2. The matter shall be mentioned on 30/7/2026 to confirm delivery of Ruling by the Court which heard the appeal (W.F. Andayi, J.). *Order accordingly.* **DATED AND DELIVERED THIS 25TH DAY OF JUNE 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Irungu for Applicant. Ms. Jayo for the Appellant. Mr. Kipngetich for the 2nd Respondent. Mr. Mati for Mr. P. Onyango for the 3rd Respondent.