https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/226

Kerubo (Suing as legal representatives of the estate of John Ariemba (deceased)) v Onchweri & another (Civil Case E238 of 2023) [2026] KEMC 226 (KLR) (3 July 2026) (Ruling) Neutral citation: [2026] KEMC 226 (KLR) Republic of Kenya In the Narok Law Courts Civil Case E238 of 2023 EM Mutuku, RM July 3, 2026 Between Patriciah Kaari & Agnes Kerubo Plaintiff Suing as legal representatives of the estate of John Ariemba (deceased) and Josephat Karori Onchweri 1st Defendant Momentum Credit Limited 2nd Defendant Ruling 1.The 2nd Defendant’s chamber summons dated 5th March 2026 is the subject of this ruling. The application is brought under order 45 rule 1 of the Civil Procedure Rules, section 80 of the Civil Procedure Act and article 159(2)(d) of the Constitution. It is supported by the affidavit sworn by Oyunge Justine Bosire on 5th March 2026. By the application, the 2nd Defendant seeks orders that:1.Spent.2.This Honourable Court be pleased to review its ruling dated 12th February 2026 and allow the Applicant’s application dated 23rd October 2025.3.The costs of this application be in the cause. 2.On 12th February 2026, the court delivered a ruling dismissing the 2nd Defendant’s application seeking to be struck out of the proceedings. In its ruling the court held that there was no sufficient evidence proving that the 2nd Defendant’s interest in motor vehicle KBU 042E was that of a financier. It is this ruling that prompted the instant application. 3.The application is premised on grounds that the application was dismissed mainly because of the 2nd Defendant’s failure to adduce sufficient evidence to support the application. That the 2nd Defendant seeks leave to adduce additional evidence which it omitted to file in support of the application. That its advocate felt that the evidence adduced was sufficient. Failure to file the documents was purely caused by an inadvertent error by the advocate. The advocate’s inadequacy should not be meted out on the client. 4.In response, the Plaintiffs filed a replying affidavit sworn by Patriciah Kaari on 18th March 2026. It is averred that the application has been made by the advocate on contested issues and not the 2nd Defendant. That the advocate has stated that the 2nd Defendant had interest in the vehicle until it was auctioned. The application does not satisfy the requirements of Order 45 rule 1 of the Civil Procedure Rules. the decree or order sought to be reviewed has not been attached. There is nothing attached to the application to show that the 2nd Defendant was a fancier. The application is incurably defective, incompetent and an abuse of the process of court and should be dismissed. The additional documents cannot be said to have not been within the knowledge of the court at the time of the initial application. 5.The response enlisted a supplementary affidavit sworn by Oyunge Justine Bosire on 20th April 2026. It is averred that the matters deponed to are non-contentious as they relate to documents supplied to the advocate. That article 159 of the Constitution provides that justice shall be administered without undue regard to procedural technicalities. 6.The application was canvassed by way of written submissions and at the time of writing this ruling both parties had filed their submissions. The 1st Defendant did not participate in the previous or instant application. Issues for Determination: 7.I have considered the 2nd Defendant’s chamber summons together with the application in support thereof and the supplementary affidavit, the Plaintiffs’ replying affidavit, both parties’ written submissions and the authorities cited as well as the relevant law; and find the singular issue before court for determination is:whether the ruling delivered on 12th February 2026 should be reviewed as sought. Analysis and Determination: 8.The 2nd Defendant’s application is for review of court ruling. Section 80 of the Civil Procedure Act provides for review of court orders, decree and decisions of a court. The section provides as follows.S. 80.ReviewAny 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. 9.As to procedure, Order 45 rule 1 provides as follows:1.Application for review of decree or order [Order 45, rule 1](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 judgment to the court which passed the decree or made the order without unreasonable delay. 10.Form the above provisions of the law, an application for review has to be premised on discovery of new and important matter or evidence which after the exercise of due diligence, was not within the applicant’s 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. 11.The 2nd Defendant’s grounds for review are that its advocate inadvertently failed to file additional documents to prove that its interest in the suit motor vehicle was that of a financier. It is averred that although the documents were already in the advocate’s custody at the time the earlier application for striking out a party was made, but the advocate believed the evidence filed in court was sufficient. 12.The Plaintiffs have spiritedly opposed the application for review stating that the evidence sought to be introduced at this stage cannot be deemed to have not been within the 2nd Defendant’s knowledge. It is contented that the application has not met the threshold for review as sought. 13.As to discovery of new and important matter or evidence, the Collins English dictionary defines to discover as to be the first to find out about; to learn about or encounter for the first time; realize; to find after study or search; to reveal or make known. 14.The Black’s Law dictionary 8th edition defines discovery to mean the act or process of finding or learning something that was previously unknown. It goes on to state that the primary discovery devices are interrogatories, depositions, requests for admissions and requests for production. It further states that it is the pretrial phase of a lawsuit during which depositions, interrogatories, and other forms of discovery are conducted. 15.In the case of Turbo Highway Eldoret Limited v Synergy Industrial Credit Limited [2016] eKLR Sewe J. cited the case of Rose Kaiza v Angelo Mpanjuiza [2009] eKLR, where the Court of Appeal considered an application for review on the ground of new evidence and held 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. 16.The above definitions and case law are clear that the discovery ought to be of new and important evidence which after due diligence was not within the knowledge of the party or could not have been produced when the decree or order was being made. 17.In its application, the 2nd Defendant has admitted existence and knowledge of the evidence it seeks to introduce at this stage for purposes of review of the court’s ruling delivered on 12th February 2026. Indeed, the 2nd Defendant’s counsel has alleged that he filed the evidence selectively believing it was sufficient. With exercise of a little due diligence, the 2nd Defendant would have filed all the evidence in its custody that it now seeks to rely on whether at the time of filing the application or at the hearing. What the 2nd Defendant attempts to do by the present application is to have a second bite of the cherry by telling the court to consider the evidence it intentionally withheld or failed to avail at the hearing of its application. 18.The High Court in Anwar Ali & another v Monica Muthoni & another [2021] eKLR cited with approval the case of D. J. Lowe & Company Ltd v Bonquo Indosuez, Nairobi Civil Application No. 217 of 1998, where the Court of Appeal sounded a caution in such applications for review and stated that:Where such a review application is based on fact of the discovery of fresh evidence the court must exercise greatest of care as it is easy for a party who has lost, to see the weak part of his case and the temptation to lay and procure evidence which will strengthen that weak part and put a different complexion. In such event, to succeed, the party must show that there was no remissness on his part in adducing all possible evidence at the hearing. 19.The 2nd Defendant has not alleged any error or mistake apparent on the face of the record. The only mistake is said to have been on the advocates side. From the above authorities of the superior courts, it is clear that once the court makes a finding that the evidence sought to be introduced does not meet the threshold of new and important matter or evidence, such evidence cannot be allowed on the ground of sufficient reason. 20.Having regard to the above analysis, I find that the 2nd Defendant’s application for review dated 5th March 2026 lacks merit and is dismissed with costs to the Plaintiffs. 21.It is so ordered. READ, SIGNED AND DELIVERED IN VIRTUAL COURT AT NAROK THIS 3RD DAY OF JULY, 2026.E. M. MUTUKURESIDENT MAGISTRATEIn the presence of:Mr. Anyona for the PlaintiffsMs. Akoth h/b for Mr. Oyunge for the 2nd DefendantC/A Lewis.