https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/282

Paul v Mutisya & another (Civil Case E043 of 2020) [2026] KEMC 282 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEMC 282 (KLR) Republic of Kenya In the Makindu Law Courts Civil Case E043 of 2020 YA Shikanda, SPM July 2, 2026 Between Dennis Musyoki Paul Plaintiff and Robert Mutisya 1st Defendant Bernard Mwaura Thuku 2nd Defendant Ruling The Application 1.The application before me is dated 13/11/2025. The same was brought by the 2nd defendant pursuant to the provisions of Order 22 rules 5, 52 and 53 and Order 45 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3A of the Civil Procedure Act. The application seeks the following orders, others having been spent:1.That this Honourable court be pleased to order the raising of the attachment of motor vehicle registration number KBW 338Q;2.That this Honourable court do issue orders for review of the judgment/decree issued on 4/10/2023 and the 2nd defendant’s name be expunged from this suit;3.That the costs of this application be provided for. 2.The application is supported by the affidavit sworn by the 2nd defendant and is premised on the following general grounds:a.The 2nd defendant/applicant obtained a judgment in Makueni Civil Appeal No. E004 of 2024 which set aside the Ruling dated 31/1/2024;b.The 1st defendant (should have been the 2nd defendant) is the registered owner of motor vehicle registration number KBW 338Q, which was wrongly indicated as the one involved in the accident herein;c.The 1st defendant (I suspect it ought to be the 2nd defendant) has never been served with court documents and the matter has been proceeding without his knowledge;d.The 1st defendant is not aware of any accident caused by his motor vehicle registration number KBW 338Q;e.The applicant’s motor vehicle has never been involved in an accident at Kibwezi and the 1st defendant herein has never been his driver;f.The correct motor vehicle which was involved in the accident is KBW 339Q. 3.In the affidavit in support of the application, the applicant expounded on the grounds contained on the face of the application and attached documents in support thereof. The Plaintiff’s Response 4.The plaintiff opposed the application by filing a Replying affidavit sworn by himself. The Replying affidavit is premised on the following grounds:a.The applicant was duly represented by the firm of Kimondo Gachoka who entered appearance and filed a defence;b.The applicant wants the court to sit on appeal against the judgment of Hon. Karani;c.The application has come late in the day when the proceedings have already closed and a judgment delivered. That the court cannot correct the judgment as it is functus officio;d.An attempt to correct, alter or amend the judgment will go to the root of the judgment and alter how the court apportioned liability and consequently award judgment in the matter;e.Both parties appeared and were heard before judgment was delivered;f.The applicant’s former advocates participated in the hearing and cross-examined the plaintiff;g.The applicant intends to fill the gaps yet he had the opportunity when his advocates cross-examined the police officer who testified;h.The applicant cannot challenge and exhibit which was produced and judgment delivered. 5.The plaintiff attached documents in support of his position. Main Issues for Determination 6.In my opinion, the main issues for determination are as follows:i.Whether there are sufficient grounds to warrant a review of the judgment herein;ii.Whether the 2nd defendant/applicant is entitled to the reliefs sought; The 2nd Defendant’s Submissions 7.The 2nd defendant gave a history of the matter. He relied on section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Quite interestingly, the applicant relied on a decision by a Magistrate. The applicant purported to adduce evidence by way of submissions. The Plaintiff’s Submissions 8.The plaintiff also filed written submissions. The plaintiff also gave a factual background on the matter and reiterated the grounds contained in his Replying affidavit. The plaintiff argued that the issue of which motor vehicle caused the accident was litigated upon. That the defence filed on behalf of the applicant did not raise the issue. The plaintiff further submitted that the applicant did not attend court to testify nor call a witness. The plaintiff contended that the court cannot expunge the 2nd defendant’s name after judgment. The plaintiff wondered whether the court will write another judgment. That the court will be sitting on appeal from the decision of Hon. Karani in an attempt to correct it. The plaintiff maintained that the court was functus officio. The applicant urged the court to dismiss the application and relied on the following authorities:a.Equatorial Commercial Bank Limited v Mohansons (K) Limited [2012] eKLR;b.Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR;c.Nderitu & 55 others v Telkom Kenya Limited & another [2024] KEHC 2297 (KLR). The 2nd Defendant’s Further Submissions 9.The 2nd defendant filed further submissions. He maintained that he was never served with the pleadings of the suit. The applicant submitted that he never instructed the firm of Kimondo Gachoka and that the said firm was instructed by his insurer, who was the same insurer for motor vehicle registration number KBW 339Q. The applicant submitted that an injustice has been occasioned to him for a mistake that arose from the police abstract. Analysis and Determination 10.I have carefully considered the application together with the applicable law. The Legal Provisions 11.Order 45 rule 1 of the Civil Procedure Rules provides that:“ (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.” 12.Section 1A of the Civil Procedure Act provides as follows:“(1)The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.(2)The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).(3)A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.” 13.Section 1B of the Civil Procedure Act provides thus:“ (1)For the purpose of furthering the overriding objective specified in section 1A, the Court shall handle all matters presented before it for the purpose of attaining the following aims—(a)the just determination of the proceedings;(b)the efficient disposal of the business of the Court;(c)the efficient use of the available judicial and administrative resources;(d)the timely disposal of the proceedings, and all other proceedings in the Court, at a cost affordable by the respective parties; and(e)the use of suitable technology.” 14.Section 3A of the Civil Procedure Act provides:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 15.Section 80 of the Civil Procedure Act provides:“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.” Case Law on the subject 16.I will highlight some of the authorities as follows.1.John Peter Kamau Ruhangi v Kenya Reinsurance Corporation [2012] eKLR.In this case, the Court of Appeal held that Order 44 Rule 1 of the Civil Procedure Rules (Now Order 45 rule 1) sets out the purview of the review jurisdiction. That a point outside that purview is not a ground for review. The court further held that a point which may be a good ground of appeal like an erroneous view of law or evidence is also not a ground for review. That a court reached an erroneous conclusion because it proceeded on an incorrect exposition of the law or misconstrued a statute or other provision of law is no ground for review. All these are grounds of appeal. The court held, inter alia, that:“........an error apparent on the face of the record is not one which is to be established by a long drawn process of reasoning or on points where there could possibly be two opinions. This Court made that quite clear in the case of Nyamogo & Nyamogo Advocates v Kogo [2001] 1 EA 173. An error apparent on the face of the record includes an omission which must also be glaring and self evident. It is not one that requires an elaborate argument or serious scrutiny of the record to be established-- National Bank of Kenya Ltd. v Ndungu Njau, civil Appeal No. 211 of 1996 (unreported). As was stated by the Nigerian Court of Appeal in the case of Peter Cheshe & another v Nicon Hotels Ltd. & Another, Appeal No. CA/A/83/M/98 that an error on the face of the record is one that can be corrected under the slip rule whose jurisdiction is limited to correcting errors, mistakes or omissions in the ruling or judgment and does not permit granting orders not made or extending the scope of the ruling.”2.Pancras T. Swai v Kenya Breweries Limited [2014] eKLR.The Court of Appeal in this case held that the three limbs of rule 1 in Order 45 relate to issues of fact and not errors of law. That an error of law can only be challenged on appeal. The court affirmed that an erroneous view or conclusion of law or evidence is not a ground for a review but may be a good ground for appeal. The court further held that:“As repeatedly pointed out in various decisions of this Court, the words, “for any sufficient reason” must be viewed in the context firstly of Section 80 of the Civil Procedure Act, Cap 21, which confers an unfettered right to apply for review and secondly on the current jurisprudential thinking that the words need not be analogous with the other grounds specified in the order. In Sarder Mohamed v Charan Singh Nand Sing and Another (1959) EA 793, the High Court correctly held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate. In Shanzu Investments Limited v Commissioner for Lands (Civil Appeal No. 100 of 1993) this Court with respect, correctly invoked and applied its earlier decision in Wangechi Kimata & Another v Charan Singh (C.A. No. 80 of 1985) (unreported) wherein this Court held that 'any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.”3.National Bank Of Kenya Limited v Ndungu Njau [1997] eKLR.In this case, the Court of Appeal held 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. That the error or omission must be self-evident and should not require an elaborate argument to be established. The court further held that it cannot 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. Analysis 17.I have considered the application and given due regard to the authorities highlighted herein above. Does the plaintiff's application fall under the purview of Order 45 rule 1 of the Civil Procedure Rules? My understanding of the law and the authorities cited herein above is that for failure to consider evidence to qualify as an “error apparent on the face of the record”, the following conditions precedent must be satisfied:a.The evidence was on record;b.The evidence was material to the outcome;c.The judgment or ruling is completely silent on it; andd.The omission is plain and patent, not debatable. 18.The applicant did not state under which limb of Order 45(1) (b) of the Civil Procedure Rules he was relying upon. His main grounds are as follows:i.He was not served with the pleadings herein;ii.The plaint indicated the wrong accident motor vehicle, which belongs to him. As such, he was wrongly sued as it was another motor vehicle which was involved in the accident. 19.Non-service of summons and pleadings is not a ground for review as envisaged by Order 45 rule 1 of the Civil Procedure Rules. It is a ground for setting aside default judgment. Nevertheless, the record indicates that a firm of Advocates entered appearance for the 2nd defendant and even filed a statement of defence. The advocates attended court and cross-examined the plaintiff’s witnesses. In his affidavit in support of the application, the 2nd defendant did not deny having instructed the firm of Kimondo Gachoka & Company Advocates. He did not state that he was not aware that they were representing him. The 2nd defendant only raised the issue in his supplementary submissions. He purported to give evidence by way of submissions. Submissions cannot take the place of evidence. 20.In the authority of Moi v Muriithi & another [2014] KECA 642 (KLR), the Court of Appeal observed that:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ ‘marketing language’, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed there are many cases decided without hearing submissions but based only on evidence presented.” 21.In the circumstances, it is difficult to believe that the 2nd defendant was not aware of the proceedings that led to the impugned judgment. If that were the case, my view is that the 2nd defendant ought to have applied to set aside the judgment and not apply for review. 22.The issue of the wrong accident motor vehicle does not fall under any of the limbs for review. It is not a new and important piece of evidence which could not be discovered even with the exercise of due diligence. It is a fact that was well known to the 2nd defendant. As rightly submitted by the plaintiff, it ought to have been raised in the statement of defence. The record indicates that PW 2 was cross-examined on the issue by the former counsel for the 2nd defendant. The 2nd defendant did not attend court to dispute the fact that his motor vehicle had been involved in the accident. It is probable that the plaintiff could have wrongly sued the 2nd defendant by proceeding against the wrong motor vehicle. However, that is an issue that ought to have been canvassed at the hearing. It is an issue of evidence. The failure by the 2nd defendant to attend court has not been sufficiently explained. 23.The 2nd defendant prays that the judgment be reviewed and his name be struck out from the proceedings. Just like the plaintiff, this court also wonders what will happen after the 2nd defendant’s name has been struck out. Will the court engage in writing another judgment or will the matter start afresh? The prayer for striking out the 2nd defendant’s name cannot be allowed in this application. Assuming that the application for review is allowed, the matter will have to start afresh so that the 2nd defendant presents his evidence either through an application seeking his removal from the proceedings or at the hearing of the main suit. My view is that in as much as the 2nd defendant may be having a good defence, the approach he has taken cannot come to his aid. 24.Review is not meant to re-hear the merits of the case or allow a party to argue that the court reached a wrong conclusion, particularly where there is no new and important evidence. The claim that the 2nd defendant was wrongly sued or that he is not liable because it was not his motor vehicle that was involved in the accident is ordinarily a defence on the merits and is usually addressed through setting aside the judgment if it was irregular or default judgment or through an appeal. The mere fact that the 2nd defendant alleges that he did not know about the case does not automatically invalidate the proceedings, where an advocate was already on record. 25.It is common knowledge that in motor accident claims, insurers usually appoint advocates under the policy terms. If the insurer appointed an advocate and that advocate entered appearance, filed a defence and participated in the proceedings on behalf of the defendant, the court will generally presume that the advocate had authority to act unless the contrary is proved. Such is the position in this case. In my view, for the 2nd defendant’s allegation to hold water, he ought to have established the following:1.The former advocate on record acted without authority;2.The insurer had no contractual right to appoint counsel;3.There was no communication between the insurer/advocate and the defendant;4.The defendant took steps to challenge the representation once they became aware. 26.I find that the 2nd defendant has not established the above factors. It is my further view that if the advocate failed to inform the 2nd defendant or acted negligently, that is an issue between the 2nd defendant and the insurer or advocate, rather than a basis to upset the plaintiff’s judgment automatically. There is nothing irregular about the proceedings that would warrant a review. As already indicated, there is no discovery of new and important evidence that was not available during the hearing and which could not be discovered by exercise of due diligence. 27.The main complaint, as I see it, is that the 2nd defendant was not given a chance to present evidence that would have exonerated him. That failure cannot be attributed to the plaintiff nor the court. It is a failure that squarely lies on either his former advocate or his insurer or the 2nd defendant himself or all of them. The 2nd defendant might have a remedy but I strongly doubt that the remedy lies in an application for review. In the case of Ajit Kumar Rath v State of Orissa & others Air 2000 Supreme Court 85, the Supreme Court of India observed that:“The provisions extracted above indicate that the power of review available to the Tribunal is the same as has been given to a court under Section 114 read with Order 47 CPC. The power is not absolute and is hedged in by the restrictions indicated in Order 47. The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for establishing it. It may be pointed out that the expression "any other sufficient reason" used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out in Order 47, would amount to an abuse of the liberty given to the Tribunal under the Act to review its judgment.” 28.The provisions of the Indian Civil Procedure Code on review are similar to those under Order 45 of our Civil Procedure Rules. In the authority of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] KEHC 6379 (KLR), Mativo J (as he then was) made the following observations:1.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise;2.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds;3.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80;4.An erroneous order/decision cannot be corrected in the guise of exercise of power of review;5.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court;6.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent;7.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier;8.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record;9.Section 80 of the Civil Procedure Code provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the Civil Procedure Code does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1;10.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. 29.Having made the above analysis, the inescapable conclusion that I reach is that the application is devoid of merit. As already indicated, the 2nd defendant raised a valid concern but his approach was not proper. However, the 2nd defendant has not met the threshold under Order 45 rule 1 of the Civil Procedure Rules. Disposition 30.In view of the above findings, and much as I believe that the 2nd defendant has a valid concern, I have no remedy to offer in the instant application. The remedy lies elsewhere. Consequently, I proceed to dismiss the application with costs to the plaintiff. DATED, SIGNED AND DELIVERED VIA CTS THIS 2ND DAY OF JULY, 2026.Y.A SHIKANDASENIOR PRINCIPAL MAGISTRATE.