https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9751

Ethics & Anti Corruption Commission v Kings Group Company Ltd & 5 others (Miscellaneous Application E028 of 2025) [2026] KEHC 9751 (KLR) (Anti-Corruption and Economic Crimes) (2 July 2026) (Ruling) Neutral citation: [2026] KEHC 9751 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Anti-Corruption and Economic Crimes Miscellaneous Application E028 of 2025 REA Ougo, J July 2, 2026 Between Ethics & Anti Corruption Commission Applicant and Kings Group Company Limited 1st Respondent King Realtors Limited 2nd Respondent King Construction Company Limited 3rd Respondent Quick Fix Auto Garage Limited 4th Respondent Lub Plus Oil And Energy Company Ltd 5th Respondent Kimani Wamatangi 6th Respondent Ruling The Application 1.Before this Honourable Court is an Application by the 6th Respondent brought under Order 45 and 51 Rule 4 of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act and all enabling provisions of the law seeking the following Orders;a.Spent;b.That this Honourable Court be pleased to review its Ruling delivered on 19th November, 2025 for reasons specified in the Application.c.That the Honourable Court be pleased to grant any other relief it deems fit.d.That costs of this Application be in the cause. 2.The Application is premised on the grounds set out in the motion and supported by the affidavit of Hon. Paul Kimani Wamatangi sworn on the 24th day of November, 2025. 3.According to the 6th Respondent, this Court, in its impugned Ruling delivered on the 19th of November, 2025, made errors that are apparent on the face of the record, and it is those errors that the 6th Respondent seeks this Honourable Court to correct to preserve the sanctity of the proceedings. 4.The 6th Respondent contends that the Honourable Court made assertions not based on documents filed by the parties, thereby reaching erroneous conclusions. It is his contention that this Court, in paragraph 95(b) of the impugned Ruling, stated that the Senate Roads, Transport and Housing Committee is mandated to consider all matters related to transport, roads, public works, and the construction and maintenance of roads and rails, yet the matter in issue was procurement and the said Committee has no procurement powers. 5.The 6th Respondent further deposed that, in paragraph 95(c) of the impugned Ruling, the Court stated that the accounts of the 1st to 5th Respondents received unexplained remittances at the material times, contrary to documents produced before the Court which indicated that the said remittances were payments made under procurement contracts executed between the subject companies and the three road agencies. According to the 6th Respondent, in concluding that there were unexplained remittances, the Court issued orders that were final in nature, despite forfeiture proceedings before this very Court, comprised in Civil Suit E042 of 2025, where an application for preservation was filed even before the delivery of the impugned Ruling. 6.It was also the 6th Respondent’s averment that the Court fell into error in concluding that there was a lack of cooperation on his part, by relying on facts arising from a totally different investigation, to wit, the aftermath of a search executed at his residence on the 15th of April, 2025, which investigated the procurement of an Enterprise Resource Planning (ERP) system by the County Government of Kiambu, while the matter before this Court relates to tenders awarded to the 1st to 5th Respondents by KeNHa, KURA and KeRRA. 7.The 6th Respondent avers that the Court made a further error in concluding that the investigation report was provided, despite there being no evidence to support that assertion, and that even the alleged Replying Affidavit in Petition E455 of 2025 was not provided. Further, in paragraph 101, this Court erroneously stated that the 6th Respondent did not deny being supplied with some materials in the form of an Affidavit, yet his documents dictate otherwise. 8.It is the 6th Respondent's further averment that the Court reached a conclusion upon submission of the Investigation Report to the DPP once the investigations were complete, whereas the said report had already been sent to the DPP on the 24th July, 2025. 9.The 6th Respondent thus urged this Honourable Court to review its Ruling of the 19th of November, 2025 to correct the said errors. The Response 10.The Application was opposed only by the Applicant whereas the 1st to 5th Respondents refrained from participating. 11.The Applicant filed Grounds of Opposition dated 17th April, 2026. The Applicant argues that the Application has been overtaken by events, noting that the Preservation Orders lapsed on the 8th of January, 2026, and that recovery proceedings in Civil Suit No. E042 of 2025 have since been instituted and injunction orders granted. Accordingly, the Applicant contends that the Application is a mere academic exercise. 12.It was the Applicants' further case that the alleged apparent errors and omissions are not self-evident but require elaborate arguments to be established, that the same ought to have been raised as grounds of appeal rather than review, and that this Honourable Court was being invited to sit on an appeal of its own decision. 13.The Applicant therefore urged this Honourable Court to dismiss the Application with costs. 14.The Application was canvassed by way of Written Submissions. The 6th Respondent’s Submissions 15.The 6th Respondent filed written submissions dated 18th May, 2026 in support of his Application. 16.It was the 6th Respondent’s submission that Order 45 Rule 1 of the Civil Procedure Rules empowers this Court to review its decision on the grounds set out therein. Reliance was placed on the case of Otieno v Musimba (Civil Appeal 27 of 2017) [2023]KEHC 867 (KLR) (10 February 2023), in which the Court cited with approval Nyamongo & Nyamongo v Kogo (2001) EA 174 on what constitutes an error apparent on the face of the record. 17.The 6th Respondent reiterated the errors set out in the motion and Supporting Affidavit and urged the Court to allow the application as prayed. 18.The 6th Respondent also relied on the case of Kibos Sugar & Allied Industries Ltd v Ayub (Civil Appeal E018 of 20210 [2023] KEHC 17387 (KLR)), where the Court cited Trust Bank Limited v Paramount Universal Bank Limited & 2 others, Nairobi (Milimani), HCCS No 1243 of 2001, in support of the assertion that where there is a lack of evidence to support what is contained in the pleadings, the pleadings remain mere statements. The Applicant’s Submissions 19.The Applicant filed written submissions dated 25th May, 2026. The Applicant submitted that the threshold for the grant of orders of review on the ground of an error apparent on the face of the record has not been met. The Applicant further submitted that the alleged errors by the 6th Respondent are not apparent but require elaborate arguments. Reliance was placed on the case of Mwihoko Housing Co. Ltd v Equity Building Society [2007] eKLR for this proposition. 20.The Applicant further argued that the grounds raised by the 6th Respondent ought to have been raised as grounds of appeal, and that this Honourable Court is being invited to sit in appeal on its own decision. The Applicant relied on the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR to support the submission that a hotly contested issue cannot be reviewed by the same court which adjudicated upon it. 21.The Applicant also argued that the Application herein has since been overtaken by events and amounts to a mere academic exercise, as the preservation orders lapsed on the 8th of January, 2026, and that forfeiture proceedings have since been instituted in Civil Suit No. E042 of 2025 against the Respondents, with injunction orders obtained against the said accounts. 22.The Applicant therefore urged this Honourable Court to dismiss the Application with costs to the Applicant. Analysis and Determination 23.I have considered the Application, the Grounds of Opposition, the rival submissions, and the law. The Application seeks to review the impugned ruling dated 19th November 2025. 24.Section 80 of the Civil Procedure Act provides as follows;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. 25.Furthermore, Order 45 Rule (1) provides for the grounds upon which review may be sought. It provides as follows;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. 26.Therefore, from the above, three distinct grounds have been identified, namely the discovery of new and important evidence, a mistake or error apparent on the face of the record, and any other sufficient reason. 27.In Republic -vs-Advocates Disciplinary Tribunal Ex parte Apollo Mboya [2019] eKLR, Justice Mativo (as he then was) set out the principles to be considered in the review of its own decisions as follows;a.A court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.b.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.c.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.d.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.e.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.f.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.g.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.h.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.i.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.j.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. 28.The Court went on to state as follows;The power of review is available only when there is an error apparent on the face of the record. I emphasize that review proceedings are not an appeal. The review must be confined to error apparent on the face of the record and re-appraisal of the entire evidence or how the judge applied or interpreted the law would amount to exercise of Appellate Jurisdiction, which is not permissible. (emphasis) 29.The 6th Respondent, by the Application dated 24th November, 2025, approached this Court to review the impugned Ruling on the ground that there were errors apparent on the face of the record. 30.The 6th Respondent alleges errors in paragraphs 95(b) and (c) of the impugned Ruling. The said paragraphs are reproduced below.b.The 6th respondent/applicant was at the material time, serving in the Senate Committee on Roads, Transportation and Housing which is a Parliamentary Committee mandated to consider all matters related to transport, roads, public works, construction and maintenance of roads and rails.c.During the period of interest, the 1st to 5th respondents were awarded tenders by KeRRA, KURA and KeNHA. The monies that were paid to the 1st - 5th respondents were deposited in the accounts in issue in these proceedings and the 6th respondent is a signatory to those accounts which accounts received numerous unexplained remittances by virtue of him being a signatory, it means that he has an interest in the affairs of the 1st – 5th respondents. 31.Reading the above paragraphs, I find that no errors have been disclosed. It was not in dispute that the 6th Respondent was serving on the Senate Committee on Roads, Transport and Housing, as disclosed in paragraph 95(b) above. Furthermore, the 6th Respondent's argument that the indication that the 1st to 5th Respondents' accounts received unexplained remittances is erroneous is defeated by the very fact that the said paragraph captures that tenders were awarded to the said Respondents. Therefore, no error can be said to exist. 32.As stated in the Republic -vs- Advocates Disciplinary Tribunal Ex parte Apollo Mboya case, an error that can be discovered only after a long process of reasoning cannot be treated as an error apparent on the face of the record. 33.The 6th Respondent further seeks review of the impugned Ruling on the findings of lack of cooperation and reliance on facts arising from a different investigation, that he was not provided with the Investigation Report by the Applicant, and that the Court stated that the Investigation Report was to be made available to the DPP once the investigations were complete, yet the said report had already been forwarded to the DPP on the 24th of July, 2025. 34.However, the above cannot be said to be errors apparent on the face of the record, as they would require elaborate arguments to be established. The 6th Respondent is, in essence, inviting this Court to sit on appeal from its own decision, as there would be a need to re-evaluate the evidence on record. That is, strictly speaking, a preserve for an appeal and not for review. 35.I agree with the Applicant that, being aggrieved by the impugned Ruling, the 6th Respondent ought to have appealed against it. 36.Consequently, I find that the Application dated 24th November 2025 lacks merit and is hereby dismissed with costs. SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY 2026.R.E. OUGOJUDGEIn the presence of:Mr. Ometo -For the 6th Respondent/ApplicantMiss Murugi -For Applicant/ RespondentMiss Amutavy h/b - For Mr. Okatch for the 1st RespondentMr. Nkarichia -For the 2nd & 3rd Respondents.Mr. Wanga -For the 4th & 5th RespondentsAdan/ Minah