https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12763

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI CIVIL APPELLATE DIVISION** **HCCSCA NO. E100 OF 2026** **DERICK WACHIRA MURINGI ………………………………… APPELLANT** **VERSUS** **TRIDENT INSURANCE CO. LTD………………………….1ST RESPONDENT** **SKYMARK INSURANCE AGENCY……………………… 2ND RESPONDENT** **RULING** 1. This ruling is in respect to the 2nd Respondent/Applicant’s Notice of Motion dated 11th June 2026 brought under Section 80 of the Civil Procedure Act (CPA), Order 45 Rules 1 and 2 and Order 51 Rule 1 of the Civil Procedure Rules (CPR). The Applicant seeks, principally, stay of execution of the decree issued on 2nd June 2026 and review of the Judgment delivered on 28th May 2026. 2. The application is supported by the affidavit of **Seif Sidik Abdulla** who states that the Applicant only became aware of the Judgment after its bank account and M-Pesa Paybill were subjected to garnishee proceedings following the issuance of a Garnishee Order Nisi. He attributes the Applicant's failure to participate in the appeal to an internal administrative lapse, contending that the Applicant's secretary failed to notify the directors after receiving court documents through the company's official email. 3. The Applicant further deposes that there are errors apparent on the face of the record warranting review. First, it is contended that the appeal was filed approximately nine months after delivery of the Small Claims Court Judgment without leave contrary to Section 79G of the Civil Procedure Act and Order 50 Rule 6 of the Civil Procedure Rules. Secondly, it is argued that no competent Memorandum of Appeal was filed as required under Order 42 Rule 1 of the Civil Procedure Rules, since the Appellant merely annexed a memorandum to the Record of Appeal. Thirdly, the Applicant contends that the Memorandum of Appeal challenged both findings of law and fact contrary to Section 38(1) of the Small Claims Court Act which limits appeals from the Small Claims Court to matters of law only. 4. In its written submissions, the Applicant abandoned its earlier argument that the 2nd Respondent, being an agent of a disclosed principal, could not be held liable, conceding that such an argument goes to the merits of the appeal rather than review. The Applicant instead confined itself to the alleged procedural defects and argued that they constitute errors apparent on the face of the record within the meaning of Order 45 Rule 1. Reliance was placed on ***Zablon Mokua vs. Solomon M. Choti & 3 Others* [2016] eKLR**, where the court observed that review jurisdiction is confined to discovery of new evidence, error apparent on the face of the record or any other sufficient reason. The Applicant also cited ***Amref Health Africa vs. Obadha* [2023] KEHC 26115 (KLR)** in support of the proposition that statutory timelines for filing appeals are jurisdictional. **The Respondent's Case** 1. The Respondent opposed the application through the Replying Affidavit sworn on 15th June 2026 where he described the application as an abuse of the court process founded on falsehoods. He deposed that the Memorandum of Appeal was filed on 29th July 2025 within the statutory period and that the matter was initially registered as HCCSCA No. E014 of 2025 before being administratively transferred to the Civil Appellate Division following establishment of the new division. He outlined out the procedural history of the appeal, including directions issued by **Hon. Noelle Kyanga**, Deputy Registrar, **Hon. Justice Francis Gikonyo** and **Hon. C.A. Okumu**, Deputy Registrar, culminating in Judgment on 28th May 2026 after the Respondents failed to participate in the proceedings despite service. 2. The Appellant further contended that internal administrative failures within a corporate entity cannot constitute a legal basis for review of a judgment or deprive a successful litigant of the fruits of a lawful judgment. He argued that the Applicant is improperly seeking to re-litigate issues that ought to have been raised during the hearing of the appeal. 3. The Appellant also filed a Supplementary Replying Affidavit in which he produced documentary evidence from the Judiciary e-filing system showing that the Memorandum of Appeal was filed on 29th July 2025 together with the corresponding Judiciary receipt. He explained that the subsequent registration of HCCSCA No. E100 of 2026 resulted solely from administrative transfer and not late institution of the appeal. He maintained that no error apparent on the face of the record has been demonstrated. 4. In his written submissions, the Appellant raised a preliminary objection that the firm of Donald Juma & Co. Advocates came on record after judgment without leave contrary to Order 9 Rules 5, 9 and 10 of the Civil Procedure Rules and therefore lacked audience before the Court. He relied on ***Monica Moraa vs. Kenindia Assurance Co. Ltd* [2010] eKLR**. 5. The Appellant further submitted that the Court is ***functus officio*** and cannot revisit the merits of its own appellate decision through review, and that the Applicant has failed to satisfy the requirements under Section 80 of the Civil Procedure Act and Order 45 Rule 1. **Analysis and Determination** 1. I have carefully considered the application, the affidavits filed by the parties, the rival submissions together with the authorities cited. In my view, the sole issue falling for determination is whether the Applicant has satisfied the legal threshold for review of this Court's Judgment delivered on 28th May 2026. 2. The jurisdiction of this Court to review its own decisions is donated by **Section 80 of the Civil Procedure Act**, which provides that: ***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."*** 1. The above provision is complemented by **Order 45 Rule 1 of the Civil Procedure Rules** which stipulates that: ***"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 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 of judgment to the court which passed the decree or made the order without unreasonable delay.*** 1. The principles governing review are now well settled. In ***National Bank of Kenya Ltd vs. Ndungu Njau* [1997] eKLR**, 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. 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 review be a ground for rehearing the case.”*** 1. Similarly, in ***Pancras T. Swai vs. Kenya Breweries Limited* [2014] eKLR**, the Court of Appeal reiterated that review is not an avenue through which a dissatisfied litigant can re-open a concluded matter merely because he disagrees with the Court's findings. The Court emphasized that review is confined to the specific grounds set out under Order 45 Rule 1 of the Civil Procedure Rules. 2. The same position was adopted by this Court in ***Zablon Mokua vs. Solomon M. Choti & 3 Others* [2016] eKLR**, where it was held that the jurisdiction to review a judgment is restricted to discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. 3. Before considering whether the Applicant has satisfied the above threshold, I find it necessary to dispose of the preliminary issue raised by the Appellant regarding the competence of the application on account of the firm of **Donald Juma & Company Advocates** allegedly coming on record after judgment without leave of the Court contrary to Order 9 Rule 9 of the Civil Procedure Rules. 4. Order 9 Rule 9 provides that where there is a change of advocates after judgment, such change shall not be effected without leave of the court or upon the filing of a consent between the outgoing and incoming advocates. 5. In ***Monica Moraa vs. Kenindia Assurance Co. Ltd* [2010] eKLR** the court underscored the mandatory nature of the said provision and held that advocates coming on record after judgment without complying with Order 9 Rule 9 are improperly on record. 6. I have considered the record before me and I note that it is not disputed that the firm of **Donald Juma & Company Advocates** filed a Notice of Appointment after judgment. The Applicant was however not represented during the appeal proceedings and no previous advocate participated in the appeal before this Court. The record further shows that the Applicant had been represented before the Small Claims Court by a different firm of advocates. 7. The purpose of Order 9 Rule 9 is to safeguard the interests of an advocate who has conducted litigation up to judgment and to prevent parties from circumventing obligations relating to costs by changing advocates after judgment. In my view, the circumstances obtaining in the present case do not demonstrate that the Applicant intended to circumvent the said provision. More importantly, the issue raised in the present application concerns the Court's jurisdiction to review its own judgment. In the interests of substantive justice, and bearing in mind the dictates of Article 159(2)(d) of the Constitution, I decline to strike out the application on that procedural ground and shall determine it on its merits. 8. Turning to the substantive application, the Applicant contends that the Court overlooked three matters which, according to it, constitute errors apparent on the face of the record; first, that the appeal was filed outside the statutory period prescribed under Section 79G of the Civil Procedure Act; secondly, that no competent Memorandum of Appeal was filed under Order 42 Rule 1 of the Civil Procedure Rules; and thirdly, that the Memorandum of Appeal challenged both findings of law and fact contrary to Section 38(1) of the Small Claims Court Act. 9. On the question whether the appeal was filed out of time, the material placed before this Court tells a different story. The Appellant has exhibited the Memorandum of Appeal bearing the Judiciary electronic filing stamp of 29th July 2025, together with the corresponding Judiciary receipt confirming payment of filing fees on the same date. The Applicant's own Supplementary Affidavit sworn by its counsel also acknowledges, after inspection of the physical court file, that the appeal was indeed filed on 29th July 2025 before the Commercial and Tax Division and was subsequently transferred administratively to the Civil Appellate Division. I find that the allegation that the appeal was instituted on 11th March 2026 is therefore not borne out by the court record. 10. Equally unmeritorious is the contention that no Memorandum of Appeal was filed. The court record contains a duly signed Memorandum of Appeal filed on 29th July 2025 commencing the appellate proceedings. My view is that whether the Memorandum subsequently formed part of the Record of Appeal is immaterial. The undisputed fact is that the foundational pleading required under Order 42 Rule 1 was filed and remains part of the court record. 11. The Applicant's complaint that the Memorandum of Appeal challenged matters of both law and fact similarly does not disclose an error apparent on the face of the record. Whether the grounds of appeal fell within the confines of Section 38(1) of the Small Claims Court Act was an issue that ought to have been raised before determination of the appeal. It is not a patent error apparent from the record but rather an invitation to this Court to reconsider the merits of its own judgment. I find that that is not the function of review proceedings. 12. I also find no merit in the Applicant's explanation that its failure to participate in the appeal resulted from its secretary's failure to relay court documents to management. Internal administrative lapses within a corporate entity cannot constitute discovery of new evidence or an error apparent on the face of the record. It is trite that litigation must come to an end, and a successful litigant ought not to be deprived of the fruits of his judgment because of the unsuccessful party's internal communication failures. (See ***Benjoh Amalgamated Ltd & Another vs. Kenya Commercial Bank Ltd* [2014] eKLR**). 13. Ultimately, I find that the Applicant has not demonstrated the discovery of new and important evidence that was unavailable despite due diligence, any self-evident error apparent on the face of the record, or any other sufficient reason within the meaning of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The application is, in essence, an invitation to this Court to sit on appeal over its own judgment, which the law does not permit. 14. The upshot is that the Notice of Motion dated 11th June 2026 lacks merit and is hereby dismissed with costs to the Appellant. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**