https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7326

Malale v Nzoia Sugar Company Ltd (Civil Appeal E048 of 2021) [2026] KEHC 7326 (KLR) (28 May 2026) (Ruling) Neutral citation: [2026] KEHC 7326 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E048 of 2021 REA Ougo, J May 28, 2026 Between Joshua Malale Applicant and Nzoia Sugar Company Limited Respondent Ruling 1.The applicant moved the court vide a Notice of Motion dated 21/11/2025, brought under a certificate, seeking this court to review its judgement of 30/9/2025 regarding the issue of costs applicable to the decretal sum awarded in that judgement, as well as the costs and interests in Bungoma CMCC 378 of 2014. 2.The motion was brought under Section 27 of the Civil Procedure Act, Order 45 and Order 51 rule 1 of the Civil Procedure Rules. 3.The grounds upon which the application was brought were set out in the body of the application and in the supporting affidavits of Faustine Waswa Juma, sworn on the same date as the filing of the instant application. 4.It was deposed on behalf of the applicant that he sought the court’s interpretation on the issue of costs and interest on the same which were not addressed in the judgement of 30/9/2025 in view of the fact that the applicant having had his case dismissed before the trial where he had pleaded for general damages and costs with interest and subsequently being successful on appeal, this court ought to have pronounced itself on the issue of costs and interest awarded at the trial court as the appeal was allowed with costs. 5.I have considered the said application. Section 80 of the Civil Procedure Act clothes a court with unfettered discretion to make such an order as it thinks fit, provided sufficient reason is given for the review of its decision. However, this discretion should be exercised judiciously and not capriciously. Section 80 of the Civil Procedure Act, Cap. 21 Laws of Kenya, 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 judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.” 6.Order 45, rule 1(b) of the Civil Procedure Rules is clear that, for the court to review its decision, certain requirements must be met. It provides as follows: -“(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; 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 judgement to the court which passed the decree or made the order without unreasonable delay.” 7.Order 45 therefore provides for 3 circumstances under which an order for review can be made. These are where there has been discovery of new and important matter or evidence, where there has been a mistake or error apparent on the face of the record, and finally, for any other sufficient reason. 8.It is unclear on what basis, as detailed above, the applicant has approached this court for relief. His contention is that this court remained silent on the issue of costs and interest in the trial court case, despite finding that he was successful in his appeal. The question therefore is whether the appellants successfully brought themselves within the review grounds. 9.On review, the Court of Appeal, in the case of National Bank of Kenya Limited v Ndungu Njau [1997] eKLR, guided 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. 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.In the instant case the matters in dispute had been fully canvassed before the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise, we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law. An issue which has been hotly contested as in this case cannot be reviewed by the same court which had adjudicated upon it.” 10.There is also the case of Muyodi v Industrial and Commercial Development Corporation & Another (2006) 1 EA 243, in which, again, the Court of Appeal stated as follows: -“... in Nyamogo & Nyamogo -v- Kogo (2001) EA 174 this Court said that an error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of indefiniteness inherent in its very nature, and it must be left to be determined judicially on the facts of each case. There is 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 on the face of the record would be made out. An error which has to be established by long drawn process of reasoning or on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. Again, if a view adopted by the court in the original record is a possible one, it cannot be an error or wrong view is certainly no ground for a review although it may be for an appeal...” 11.It is therefore clear that for a Court to review its orders, the ground alleged must be self-evident. In his Memorandum of Appeal dated 4/8/2021, the applicant impugned the trial court’s judgement on the ground that it failed to analyse the evidence before it properly, thereby erring in dismissing his claim. The applicant did not impugn the trial court’s award of costs to the respondent. However, it is clear from the aforementioned Memorandum of Appeal that one of the prayers sought by the applicant in his appeal was an order for costs of the appeal as well as the lower court. 12.In this court’s judgement delivered on the 30/9/2025, addressing the issue of costs, the court directed that the applicant has costs of the appeal. This was straightforward with no need for interpretation as contended by the applicant. 13.In any case, it is trite that costs follow the event. In the case of Jasbir Singh Rai & 3 others v Tarlocharn Singh Rai Estate & 4 others [2014] eKLR, the issue before the Supreme Court was whether the principle that costs follow the event was binding on the court. The court cited with approval Joseph Oduor Anode v Kenya Red Cross Society [2012] eKLR, the words of Odunga J as he then was, that in awarding costs, the discretion to do so has to be exercised judicially and that if the court diverts from the general rule, reasons must be given. The Supreme Court held that the rule was not aimed at penalizing a losing party but rather aimed at compensating the successful party for the trouble taken in presenting or defending the suit. 14.As to what good reasons are, the Supreme Court held that there exists no clear definition though under the common law, courts must proceed on a case-to-case basis in identifying the good reasons, among them public interest litigation as held in Amoni Thomas Amfry and another v Minister for Land Nairobi High Court Petition 6 of 2013, Harun Mwau & another v AG & another Nairobi H.C Petition 65 of 2011, Raila Odinga vs IEBC & others Petition No. 5 of 2013, Samuel Kamau Macharia &another v KCB and others [2013] eKLR. 15.The Supreme Court held that, in a successful suit, the party who calls forth the event will bear the costs, unless there are vitiating factors or special circumstances to depart from the rule, including the ends of justice, the motivation and conduct of the parties before, during and after the actual process of litigation, bona fides of the dispute, history of the matter, missed opportunities for Alternative Dispute Resolution, legitimacy of the cause of action, the constitutional right to submit oneself to the judicial process, and want of due diligence. 16.In the present case, I reiterate that this court, exercising its discretion and taking into account all the factors, awarded the applicant costs of the appeal only. The fact that the applicant is aggrieved by this decision is not sufficient for the court to review or set aside its order of 30/9/2025. It has not been demonstrated that any new evidence was discovered to warrant a review, or that there was a mistake apparent on the face of the record, or one alleged or pointed out, that would warrant a review. I find no basis disclosed to revisit the judgment and review it as regards costs. 17.Accordingly, I find that the application dated 21/11/2025 is without merit and dismiss it with no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY 2026.R.E. OUGOJUDGEIn the presence of:Applicant/ AbsentMiss Otiato For the RespondentWilkister C/A