https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12952

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT KISII** **CIVIL CASE NO. E007 OF 2025** **ENOCHEM AGROVET LTD.........................................PLAINTIFF** **=VERSUS=** **COUNTY GOVERNMENT OF KISII........................RESPONDENT** **RULING** 1. In a ruling delivered on 16th January 2026, this Court struck out this suit on the ground that the suit was filed out of time. That the claim was time-barred. As that the Defendant being a public authority, no proceedings against it may be commenced after the end of three years from the date on which the cause of action accrued. This is in terms of Section 3(2) of the Public Authorities Limitation Act (Cap 39 Laws of Kenya). 2. In that ruling, this Court held that the limitation period in this matter, ran from April 2022 to April 2025. April 2022 being the month in which the Defendant made to the Plaintiff, part-payment of the debt it owed. 3. Aggrieved by that ruling, the Defendant filed this Application. Seeking review of that ruling. The Application, and which is dated 4th February 2026, is principally based on the ground that the Plaint erroneously stated the date of the part-payment as April 2022. That when it was actually August 2022. Hence that this suit having been filed in May 2025, was within the three years limitation period. 4. In the grounds of the Application, the Plaintiff has stated that it discovered this error, only later, from a payment voucher that bears a stamp of August 2022. Which it contends is a new fact that it had discovered only later after the said ruling had already been delivered. It has contended that this is discovery of a new material fact. 5. In urging review, the Applicant relied on Section 80 of the Civil Procedure Act (Cap 21 LOK) and Order 45 Rule 1(b) of the Civil Procedure Rules.Both which the Application has cited as the enabling provisions of the law. The Application is supported by the Supporting Affidavit of ENOCK MAUTI MONDA its director. 6. The Defendant has opposed the Application through a Replying Affidavit of VINCENT OKIOMA NYANGWARA its Chief Officer of Finance. In which the Defendant has disowned the said payment voucher of August 2022; stating that it is not from its records. ***Analysis and Determination*** 1. The single issue for determination is whether this Application has met the legal threshold that Order 45 Rule 1 of the Civil Procedure Rules has prescribed for a review Application. 2. I have considered the Application (together with its Supporting Affidavit and annextures), the Replying Affidavit; as well as the applicable legal provisions and particularly Order 45 Rule 1 (1) of the Civil Procedure Rules. Which provides as follows: **“Any person considering himself aggrieved:** 1. **By a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or** 2. **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.** 1. On review on the ground of discovery of new facts, the applicable provisions are Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. Which read together provides the substantive as well procedural law on review. It also provides not only for the court’s review power, but also for grounds for review. 2. It cites the grounds of review, as the discovery of new and important matter or evidence which after the exercise of due diligence, was not within the party’s knowledge, or could not be produced by him at the time when the decree was passed, or the order made. It also provides that review may be on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. 3. If the prayer for review is based on the ground of discovery of new facts or evidence, such facts ought to have been unknown to the Applicant or unavailable even upon the exercise of due diligence. 4. Such cannot be facts that the Applicant had merely forgotten, despite being readily available. If a document, the document ought to be one that was not available, or could not be obtained even upon the exercise of diligence. 5. As regards this Application, the date of the part-payment is clearly stated in the Plaint as April 2022. An averment that is supported by the Supporting Affidavit that accompanied the Application, and even verified by the Verifying Affidavit that accompanied the Plaint. 6. If there was any error in the dates as stated in the Plaint, those could have been corrected by way of amendment of the Plaint. Otherwise, as it is, I find that this Application is an after-thought, and merely intended to resurrect this suit. It is therefore misconceived. Hence is hereby dismissed. Each party shall bear its costs of the Application. **DATED and DELIVERED at KISII on this 16th day of July 2026.** **PROF (DR) NIXON SIFUNA** **JUDGE**