[2025] KEHC 2509 (KLR)

Easy PC Kenya Limited v County Government of Machakos (Judicial Review E180 of 2022) [2025] KEHC 2509 (KLR) (Judicial Review) (6 February 2025) (Ruling)

Neutral citation: [2025] KEHC 2509 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Judicial Review

Judicial Review E180 of 2022

JM Chigiti, J

February 6, 2025

Between

Easy PC Kenya Limited

Applicant

and

County Government of Machakos

Respondent

Ruling

1. What is before this court for determination is the Notice of Motion dated 3rd September 2024 wherein it is urging this Court to grant the following orders:1. That, this Hon. Court be pleased to review its Judgement dated 29/4/2024 declining to grant the order of Mandamus as sought and proceed to now grant the said orders of Mandamus directed against the Respondent for the payment of Ksh. 2,974,070. 18/= together with 12% interest until payment in full.2. That, the costs of this Application together with the costs of the entire proceedings be provided for.

Brief background; 2. The Applicant’s filed a Notice of Motion dated 24th July, 2023 seeks for the following orders:1. That, this Honourable Court be pleased to grant the applicant an order of mandamus compelling the respondent and its minister of finance and/or the accounting officer in charge of the respondent's treasury and money in the respondent's county government to pay the applicant Ksh. 2,253,600/= together with interests from 22nd March, 2022 until payment in full.2. That, the costs of this judicial review proceedings be provided for and be paid by the respondent together with the orders as in l above.

3. This court having found that the Applicant did not comply with Section 21 of Government Proceedings Act for failure to obtain and serve upon the Respondent a Certificate of Order against the Government, the application was dismissed.

Applicant’s case; 4. It is its case that they have now procured the Certificate of Order Against Government which it could not produce as at the time of seeking the mandamus orders and/or as at the time of the Judgement dated 29/4/2024.

5. The Applicant contends that the Judgment was delivered on 29th April, 2024 after which date on or about 20/8/2024, it wrote to court (Commercial & Tax Division of the High Court Nairobi) seeking for the Certificate of Costs against the government which the court issued.

6. This is sufficient reason to now review the orders being sought because the Applicant has also made this Application after learning of the delivery of the Judgement on 29/7/2024 and applied for the certificate of order against the government on 2/8/2024.

7. The Applicant argues that there is no prejudice to be visited upon the Respondent because even this Application is being served upon it and the Respondent for now over five years has been aware of the matter & the money due.

Analysis and determination; 8. From the Notice of Motion as read alongside the supporting affidavit the issue that commends itself for determination is whether the Applicant’s Notice of Motion dated 3rd September 2024 should be allowed or dismissed.

9. It is not disputed that at the time of filing its application the Applicant had not complied with Section 21 of the Government Proceedings Act.

10. That it was only after this court delivered its Judgment on 29th April, 2024 did the Applicant seek the Certificate of Costs against government.

11. 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.

12. Order 45 Rule 1 of the Civil Procedure Rules provides as follows: -Application for review of decree or order.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; orb.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.2. A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case on which he applies for the review”

13. The Rules limit the ground for review to be: -a.discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;b.on account of some mistake or error apparent on the face of the record,c.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

14. In the case of Republic versus Cabinet Secretary for Interior and Co-ordination of National Government Ex parte Abulahi Said Salad [2019] eKLR the Court cited National Bank of Kenya Ltd vs Ndungu Njau, {1996} KLR 469 (CAK) wherein it was held as follows:“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.”

15. I associate myself with the decision of Justice G. V Odunga, J in the case of Ndithya v Total Kenya Limited (Miscellaneous Civil Application E218 of 2021) [2022] KEHC 10080 (KLR) (14 July 2022) (Ruling) where the court held thus:“27. Whereas under Order 45 rule 1, a person aggrieved by a decision whether an appeal is allowed or not but who is not appealing, is at liberty to apply for review of the decision, that provision, in my respectful view, is not a carte blanche for abuse of the process of the Court. In the case of Stephen Somek Takwenyi & Another vs. David Mbuthia Githare & 2 Others Nairobi (Milimani) HCCC No. 363 of 2009 Kimaru, J dealing with the issue of abuse of the process of the Court stated as follows:“This is a power inherent in the court, but one which should only be used in cases which bring conviction to the mind of the court that it has been deceived. The court has an inherent jurisdiction to preserve the integrity of the judicial process. When the matter is expressed in negative tenor it is said that there is inherent power to prevent abuse of the process of the court. In the civilised legal process it is the machinery used in the courts of law to vindicate a man’s rights or to enforce his duties. It can be used properly but can also be used improperly, and so abused. An instance of this is when it is diverted from its proper purpose, and is used with some ulterior motive for some collateral one or to gain some collateral advantage, which the law does not recognise as a legitimate use of the process. But the circumstances in which abuse of the process can arise are varied and incapable of exhaustive listing. Sometimes it can be shown by the very steps taken and sometimes on the extrinsic evidence only. But if and when it is shown to have happened, it would be wrong to allow the misuse of that process to continue. Rules of court may and usually do provide for its frustration in some instances. Others attract res judicata rule. But apart from and independent of these there is the inherent jurisdiction of every court of justice to prevent an abuse of its process and its duty to intervene and stop the proceedings, or put an end to it”.

16. I am satisfied that the Applicant took steps to secure the Certificate of Order against Government which it did not produce as at the time of seeking the mandamus orders and/or as at the time of the Judgement dated 29/4/2024.

17. The Judgment was delivered on 29th April, 2024 after which date on or about 20/8/2024, the Applicant wrote to court (Commercial & Tax Division of the High Court Nairobi) seeking for the Certificate of Costs against the government which the court issued.

18. This court cannot admit evidence that was within the Applicant’s reach as at the time of filing and determination of the suit. The Applicant did not tender evidence to demonstrate that it could not secure the Certificate of Costs against the government before the judgment.

19. This court is functus officio and it lacks the capacity to review its judgment for purposes of admitting the Certificate of Costs against the government post judgment.

Order: 20. The Application dated 3rd September, 2024 is dismissed with costs.It is so ordered.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 6TH DAY OF FEBRUARY, 2025. J. CHIGITI (SC)JUDGE