https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10524

Kithi v Mwaphatsa (Civil Appeal E152 of 2024) [2026] KEHC 10524 (KLR) (14 July 2026) (Judgment) Neutral citation: [2026] KEHC 10524 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E152 of 2024 J Ngaah, J July 14, 2026 Between Japhet Ngombo Kithi Appellant and Mwanauba Omar Mwaphatsa Respondent Judgment 1.This appeal arises from the ruling of Hon. Joe Omido (Senior Resident Magistrate) delivered on 22 June 2023 in Kwale Principal Magistrate’s Court Civil Case No. E038 of 2020, dismissing the Appellant’s application for review of the judgment delivered on 2 March 2022. 2.The Appellant was the plaintiff in the lower court. His claim arose from a road traffic accident which occurred on 19 August 2019; the accident involved the appellant’s motorcycle, which he was riding at the time, and a motor vehicle allegedly owned by the respondent. 3.The trial court dismissed the suit after finding that the evidence adduced did not establish liability against the Respondent. In particular, the learned magistrate established as a fact that the evidence adduced by a police officer called by the Appellant on the registration number of the Respondent’s vehicle was inconsistent with what the Appellant had pleaded in his plaint. To be precise, the registration number of the Respondent’s vehicle was pleaded in the plaint as KAN 529K, yet the police abstract showed that the vehicle was registered as KAW 529K. 4.Aggrieved by the court’s decision, the Appellant sought review, alleging discovery of new and important evidence and error apparent on the face of the record. What the Appellant presented as new and important evidence was the registration certificate from the National Transport and Safety Authority showing that the vehicle registered as KAW 529K was a rickshaw, yet the vehicle that hit his motorcycle was a lorry. He also introduced a picture of the lorry as new and important evidence. 5.The application for review was dismissed, giving rise to the present appeal. The memorandum of appeal dated 10 July 2023 raises several grounds, which may be condensed into the following issues:a.Whether the learned magistrate erred in declining to review the judgment of 2 March 2022.b.Whether the Appellant established grounds for review under Order 45 Rule 1 of the Civil Procedure Rules.c.Whether the learned magistrate erred in finding that there was delay in seeking review.d.Whether the appeal has merit. 6.While dismissing the application for review, the learned magistrate held that the discrepancy between the police abstract and the certificate of registration with respect to the registration number of the accident vehicle could have been corrected during the police officer’s testimony at the latest. Yet the plaintiff chose to close his case even when it was obvious that there was an inconsistency between his pleadings and the evidence presented on his behalf. 7.The court also declined to accept the argument that in the absence of any witness statement for the defence, and without the Respondent calling any evidence, the defence ought to have been struck out. Similarly, the court was not persuaded that merely because the Respondent did not file a replying affidavit in response to the application for review, the application ought to have been allowed as uncontested. The learned magistrate noted that the Respondent had filed grounds of objection and that the application was properly opposed as required under Order 51 Rule 14 of the Civil Procedure Rules. 8.Finally, the learned magistrate held that there was inordinate delay in bringing the application for review. The judgment sought to be reviewed was rendered on 2 March 2022, yet it was only on 17 June 2022 that the Appellant filed his application for review. 9.The power of review is donated by Section 80 of the Civil Procedure Act, cap. 21, and Order 45 Rule 1 of the Civil Procedure Rules. An applicant seeking review must demonstrate:a.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 at the time the decree was passed;b.an error apparent on the face of the record; orc.any other sufficient reason. 10.The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR 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.” 11.Similarly, in Nyamogo & Nyamogo Advocates v Kogo [2001] EA 173, the Court stated:“An error apparent on the face of the record cannot be defined precisely or exhaustively. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where an error on a substantial point of law stares one in the face and there could reasonably be no two opinions, a clear case of error apparent would be made out.” 12.The foregoing authorities establish that review is not intended to afford a litigant a second opportunity to re-argue his case or invite the court to rehear issues already determined. 13.The Court further notes that the principles governing review were comprehensively restated in Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR, where it was held that review jurisdiction must be exercised sparingly and only within the confines prescribed by statute. 14.The question that arises is whether, indeed, there was discovery of new and important evidence. The Appellant’s case before the learned magistrate was that after judgment, he conducted a search and discovered that motor vehicle registration number KAW 529K was a “Tuk Tuk” owned by one Veronica Kariuki and not the Respondent. He argued that this constituted new evidence warranting review. 15.Does this evidence satisfy the threshold set forth in Order 45 Rule 1 of the Civil Procedure Rules? In Executive Committee Chelimo Plot Owners Welfare Group & 288 Others v Langat Joel & 4 Others [2018] eKLR, the Court held that for evidence to qualify as “new and important”, a party must show not only that it was unavailable at the time of trial but also that it could not have been obtained with reasonable diligence. Likewise, in Jameny Mudaki Asava v Brown Otengo Asava & Another [2015] eKLR, the Court held that evidence is not new merely because it was obtained after judgment; it must be evidence that could not have been discovered and produced earlier despite due diligence. 16.From the record, the discrepancy between registration numbers KAN 529K and KAW 529K emerged during trial through the testimony of the police officer, who was called by the Appellant. As the learned magistrate noted in his ruling, if the Appellant had been diligent enough, he could have noticed the discrepancy even before the hearing since he was in possession of the records of the motor vehicle registration and the police abstract. 17.But even if it is assumed that the discrepancy came to the fore during the hearing, the Appellant had the opportunity to correct the error, either by seeking the court’s leave to stand down the witness and an adjournment to enable him to clarify the matter with the police, or by conducting a search and, perhaps, seeking the court’s leave to call additional witnesses for the purpose of establishing that the proper registration number of the vehicle was what he had pleaded and what was indicated in the registration certificate from the government registration authority. 18.The post-judgment search relied on by the Appellant cannot be said to constitute evidence which could not, with due diligence, have been discovered earlier. It therefore falls short of the requirements of Order 45 Rule 1 of the Civil Procedure Rules. 19.As to whether there was an error apparent on the face of the record, it has been urged on behalf of the Appellant that the trial court erroneously dismissed the suit despite evidence pointing to motor vehicle registration number KAN 529K and ownership by the Respondent. With respect, that complaint goes to the merits of the judgment itself. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court emphasized that a review cannot be granted merely because a court reached an erroneous conclusion of law or fact; such complaints belong to the appellate process. 20.The same position was adopted in Abasi Belinda v Frederick Kangwamu & Another [1963] EA 557, where the Court stated that a point which may be a good ground of appeal cannot necessarily be a ground for review. 21.Questions as to whether the learned magistrate correctly evaluated the evidence regarding ownership, the registration number, and liability are issues requiring re-evaluation of evidence and legal reasoning. Such matters are, by their nature, appropriate grounds of appeal and not review. Accordingly, I agree with the trial court that no error apparent on the face of the record was established. 22.On whether the absence of a replying affidavit entitled the Appellant to review, it was urged for the Appellant that his application for review was uncontroverted because the Respondent filed only grounds of opposition and no replying affidavit. 23.There is considerable authority for the proposition that grounds of opposition generally address points of law and do not controvert factual depositions made on oath. In Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Ltd [2010] eKLR, the Court held that grounds of opposition do not constitute evidence and cannot rebut factual averments contained in a supporting affidavit. 24.The Court of Appeal in Daniel Kibet Mutai & 9 Others v Attorney General [2019] eKLR similarly held that where affidavit evidence remains unchallenged, the facts deponed therein may be treated as admitted. However, in the instant case, the Appellant’s application did not turn so much on facts; indeed, the facts material to his application were not in dispute. 25.In any event, the fact that an application is unopposed does not automatically entitle an applicant to the orders sought. The Court must still be satisfied that the legal threshold for the relief sought has been met. As was stated in Kenya Commercial Bank Ltd v Suntra Investment Bank Ltd [2015] eKLR, a court is not obliged to grant orders merely because they are unopposed; the applicant must establish a proper legal basis for the relief. 26.Accordingly, even if the factual averments in support of the review application remained uncontroverted, the Appellant was still required to satisfy the statutory requirements for review. In my view, he did not. 27.The final question is that of delay. The learned magistrate held that a delay of three months, between the time the judgment was rendered and the time the application was filed, was inordinate. I would agree with the learned magistrate, considering that no explanation was given for the delay. But even if the delay was not inordinate, that in itself would not entitle the Appellant to review. The Court of Appeal in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR held that even where an application is brought promptly, the applicant must still establish one of the recognized grounds for review. 28.Since the Appellant failed to establish discovery of new evidence, error apparent on the face of the record, or any sufficient reason, the application was bound to fail regardless of the question of delay. 29.In conclusion, the totality of the evidence and the applicable law lead this Court to the conclusion that the Appellant’s grievance is directed at the merits of the judgment delivered on 2 March 2022 and not at any matter amenable to review. The proper remedy against an alleged erroneous evaluation of evidence is an appeal and not an application for review. 30.Consequently, I find that the learned magistrate properly exercised his discretion in dismissing the application dated 17 June 2022. Inevitably, I find this appeal without merit. It is hereby dismissed with costs. DATED, SIGNED AND DELIVERED AT MOMBASA ON 14 JULY 2026. NGAAH JAIRUSJUDGE