Halake v Mugambi t/a Kiogora Mugambi & Company Advocates (Civil Case E003 of 2025) [2026] KEHC 10516 (KLR) (9 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MARSABIT** **CIVIL CASE NO. E003 OF 2025 (OS)** **IN THE MATTER OF THE ADVOCATES ACT** **AND** **IN THE MATTER OF AN APPLICATION FOR AN ORDER FOR RPAYMENT OF MONIES RECEIVED AND HELD BY THE ADVOCATES IN TRUST FOR THE CLIENT** **MARY HIRBO HALAKE…………………………APPLICANT/RESPONDENT** **VERSUS** **KIOGORA MUGAMBI T/A** **KIOGORA MUGAMBI & CO ADVOCATES……. RESPONDENT/APPLICANT** **R U L I N G** 1. **Introduction** 2. The application before this court for determination is the Respondent/Applicant Notice of Motion application dated 18th November 2026, brought pursuant to provisions of **Section 1A, 1B,3, 3A and 80 of the Civil Procedure Act, Order 45 of the Civil Procedure Rules, 2010** and all other enabling provisions of law. The applicant prays for orders that; 3. ***Spent.*** 4. ***Spent*** 5. ***That this court be pleased to review and/or set aside its decision/ruling and all subsequent orders made on the 26th August 2025 pending hearing and determination of this Application.*** 6. ***That this Honourable court be pleased to allow the Application dated 10th June 2025.*** 7. ***That this Honourable court be pleased to give such orders or other conservatory orders and/or directions as would preserve the set circumstances in such a way that sets aside the default judgment decree and all other consequential orders made on 21.05.2025 and 26.08.2025 in these proceedings and allows the respondent/applicant unconditional leave to defend this suit.*** 8. ***That this court grants such other or further relief as it may deem fit and necessary in the circumstances and an order providing for costs of the Application.*** 9. This application is supported by the grounds advanced on the face of the said application and the Supporting affidavit of the Advocate/Applicant, dated 18th November 2025, where he avers that this court did delivered a ruling dated 26th August 2025, dismissing his application to set aside judgment dated 10th June 2025, but he had discovered, “*New evidence*” that the email address and/or phone Number 0710762461, the basis upon which the court found that he had been served did not belong to him and/or the law firm. 10. He further clarified that on his setting aside application dated 10.06.2025, he had indicated the email address upon which pleadings could be served, but inexplicably, when the respondents filed their replying affidavit thereto, the chose to serve the same through an unknown email,***Kiogora@kiogora-advocate.com***, which was not their email address, and this had created a fatal lapse, as they were unable to update themselves as to its contents of the said replying affidavit and thus did not apply for leave to file supplementary affidavit to rebut the issue raised therein, especially concerning service of summons. 11. The Applicant further averred that, the court erred in law by relying on the uncontested averments that he had been served through the aforestated ( contested ) email, and in finding that he did not attach a draft defence, whereas the originating summons (OS) did not require any such defence, but a response, which they had filed in form of a preliminary objection to the OS dated 10.06.2025, which the court did not consider. 12. The applicant also faulted the court for failing to note that the process server had failed to attach the service provider report to ascertain service and urged the court to find that after achieving their nefarious scheme of securing Ex’parte judgment, the respondents counsel had now resorted to serving him on his known/official email, ***Kiogoramugambinrb@gmail.com***.The issues raised were new and were discovered after the impugned ruling of 26.08.2025 had been delivered, and were matters even with due diligence, were not within his knowledge and thus formed a proper basis/grounds upon which the said ruling ought to be reviewed. 13. He thus urged the court to allow this application with costs, and further to set aside the irregular default judgment entered against him. **(B) The Response** 1. This Application was strongly opposed by the respondent through her replying affidavit dated 6th February 2026, where she described the aforestated application to be misconceived, untenable, frivolous, vexatious, a nonstarter and constituted and abuse of the court process. She pointed out that the applicant’s main complaint was that he was no heard and/or given sufficient opportunity to respond to her replying affidavit dated 15.06.2025 filed in response to his setting aside application dated 10.06.2026. That however was an issue of law, which even if true, would form a basis of an appeal to the court of Appeal but not for review of the orders earlier issued. 2. Further even assuming, arguendo, that the failure to properly serve the response constituted, “discovery of new and important matter of evidence,” the application would still fail as the applicant had not demonstrated or proved that whatever he alleges is discovery of new evidence was not within his knowledge prior to the delivery of the impugned ruling. 3. Specifically, to the complaint raised, the respondent did point to the fact that on his application dated 10.06.2025, the applicant had provided two emails, through which he could be served. The same being Kiogoramugambinrb@gmail.com on the last page of the certificate of urgency and kiogoramugambi@gmail.com on the last page of the notice of motion. Upon filing her response to the said application her advocate had served the said replying affidavit upon the applicant through kiogora@kiogoraadvocates.com and copied kiogoramugambirnb@gmail.com, the very email provided on the application dated 10.06.2025, and therefore could also not complain that he was not properly served. 4. Secondly the respondent also noted that the email kiogora@kiogoraadvocates.com, through which they served the applicant with the Originating summons, was obtained from the applicants office receipts issued, when she made payments to the said law firm and at no time had they served the applicant through his email known as Kiogora@kiogora-advocate.com, as the said email was not within their knowledge and without doubt had been created by the applicant in a pathetic attempt to weave an new narrative and hoodwink the court into finding that he had never been served with her response to the application dated 10.06.2025. 5. Finally on his further claim that mobile phone number 0710762461, was not associated with him, the respondent reiterated that the applicant was denying the obvious since the process server had in the affidavits of service dated 20.03.2025 and 25.04.2025 attached screenshots of Mpesa massages printout showing and proving that the disowned phone number actually belongs to the applicant, since Mpesa money sent to him returned a massage with his name, Kiogora Mugambi. Further the same was reaffirmed on 06.02.2026, when the said process server again sent money to the said phone number and still achieved the same results. 6. It was also to be noted that the new phone number 0711749739 and email sule701@yahoo.com , all of which were being introduced at this stage, were all not emails/phone number which were within her knowledge and/or within her advocates knowledge or contemplation and were obviously being introduced as a last ditched attempt to change the applicants known email address/ phone number in an attempt to hoodwink court in changing the narrative in his favour. 7. The respondent thus urged the court to find that there was no error or mistake apparent on the face of record, and that the issues and/or allegations raised, were those which required long drawn inquiry/argument process and hence did not amount to, “errors apparent on the face of the record” as contemplated within the meaning and phraseology of ***Section 80 of the Civil procedure Act and Order 45, Rule 1(b) of the Civil procedure Rules, 2010.*** 8. The respondent thus urged the court to find that this application has no merit and be pleased to dismiss the same. **(C) The Applicants Supplementary Affidavit** 1. The applicant averred that the replying affidavit filed was evasive, and had not responded to issues raised. Further, it was full of falsehood, as it was not proved that the phone number 0710762461 belonged to him, and/or that indeed discovery of new evidence being the email purportedly issued to serve him, actually did not belong to him and/or the said law firm. The process server, who purported to serve him too had not filed an affidavit to rebut the issues raised in his application nor had he attach the service provider report as required by law to ascertain that the email and phone number belonged to him/the firm. 2. He reiterated that there was also an apparent error on the face of the record, since the court had held that he had not filed a draft defence, which was not necessary since he had responded to the OS application by filing a preliminary objection, which was sufficient in law. As a result, he had been deprived of a chance to defend himself and it would therefore be just, that the default judgment made in favour of the respondent be arrested/set aside, since he had already released the sum claimed to the principal client. 3. His application was thus merited and urged the court to allow the same. 4. **Analysis & Determination** 5. I have carefully considered the Application, its Supporting Affidavit, the Respondent’s Replying Affidavit, and the supplementary affidavit filed in response. I have also considered both set of submissions filed by the parties’ respective counsels and find that the only issue for determination is whether proper grounds have been put forth to warrant review of this court’s ruling dated 26th August 2025. 6. **Section 80 of the Civil Procedure Act** and **Order 45 Rule 1 of the Civil Procedure** summarize the circumstances/conditions under which orders for review may be issued and they include where the applicant shows: 7. ***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;*** 8. ***on account of some mistake or error apparent on the face of the record,*** 9. ***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.*** 10. The applicant seeks for review of this court’s ruling dated 26.08.2025, based on discovery of new facts, which were not previously within his knowledge and secondly on grounds that there is an error on the face of the record. The Court of Appeal’s determination in **Rose Kaiza v Angelo Mpanjuiza [2009] eKLR** cited the commentary by **Mulla of the Indian Civil Procedure Code, 15th Edition at page 2726**, on the ground of discovery of new and important evidence, where it was stated that; ***“Applications on this ground must be treated with great caution and as required by r 4(2) (b) the Court must be satisfied that the materials placed before it in accordance with the formalities of the law do prove the existence of the facts alleged. Before a review is allowed on the ground of a discovery of new evidence, it must be established that the applicant had acted with due diligence and that the existence of the evidence was not within his knowledge; where review was sought for on the ground of discovery of new evidence but it was found that the petitioner had not acted with due diligence, it is not open to the Court to admit evidence on the ground of sufficient cause. It is not only the discovery of new and important evidence that entitles a party to apply for a review, but the discovery of any new and important matter which was not within the knowledge of the party when the decree was made.”*** 1. The central issue raised by the applicant was that the replying affidavit, filed in response to his setting aside application dated 10.06.2025 was not served upon him, since the email ( Kiogora@kiogora-advocate.com ) was not his email and thus he was unable to respond to the issues raised in the said replying affidavit. This had prejudiced him and denied him a chance to rebut the issues raised therein to his detriment. In response the respondent rubbished this claim and clarified that her advocate indeed did serve the respondent through his known emails, which was Kiogora@kiogora-advocates.com and copied kiogoramugambinrb@gmail.com, the very email provided by the applicant on his application dated 10.06.2025 and annexed a printout of the email (marked MHH-2) as evidence of the said service. 2. I do find that the issue raised regarding service is a red herring meant to keep the respondent from enjoying the fruits of her judgment, as evidently the applicant was served with the replying affidavit through his acknowledged email kiogoramugambinrb@gmail.com, the very email provided on his application dated 10.06.2025. Secondly the said affidavit was filed on the CTS, where the applicant had access and he cannot allege, lack of knowledge regarding the same. His complaint on this score therefore fails. 3. Regarding there being an error on the face of the record. The Court of Appeal had the following to say in an application for review, made under the said ground in the **National Bank of Kenya Ltd vs Ndungu Njau (1997) eklr** . ***“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 it 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.*** 1. Also, In **Chandrakhant Joshibhai Patel -v- R [2004] TLR, 218** it was held that an error stated to be apparent on the face of the record: ***"...must be such as can be seen by one who runs and reads, that is, an obvious and patent mistake and not something which can be established by a long-drawn process of reading on points on which may conceivably be two opinions.*** 1. The applicant averred that the court erred in failing to consider the preliminary objection filed to the OS dated 10.06.2025 and thus wrongly held that he had not filed a draft defence. Secondly the court had also erred in holding that he represented the applicant in ***Marsabit Civil Case Number 17 of 2016***, while in reality he had represented ***Sarah Jibo Kangori***, who has been receiving payments as per the bank transactions filed in his application dated 10.06.2025. 2. While it is true that while determining the application dated 10.06.2025, the court did not refer to the preliminary objection attached thereto, I do note that the said objection raises issues of jurisdiction of the court vis a vis the advocates complaints commission and who between the respondent and her daughter were entitled to payments made to the applicant. The court in the ruling dated 26.08.2025 made specific and conclusive finding on these issues, and if dissatisfied, the only avenue open to the applicant, was to file an appeal to the court of Appeal, and not to seek review of the same. 3. **DISPOSITION** 4. The upshot is that, I do find and hold that this application is misconceived, lacks merit and the same is dismissed with costs. 5. The said costs are assessed at **Kshs.30,000/=** all inclusive. 6. It is so ordered***.*** **READ, SIGNED,** and **DELIVERED** virtually at **MARSABIT** on this **9th** day of **JULY, 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** **Delivered** on the **virtual platform, Teams** this **9th** day of **JULY, 2026.** **In the presence of;** ………………………………….for Applicant ………………………………….for Respondent ………………………………….Court Assistant