https://new.kenyalaw.org/akn/ke/judgment/kecopt/2026/258

Kihoro v Gitogo (Tribunal Case E036 of 2021) [2026] KECOPT 258 (KLR) (29 May 2026) (Ruling) Neutral citation: [2026] KECOPT 258 (KLR) Republic of Kenya In the Cooperative Tribunal Tribunal Case E036 of 2021 J Mwatsama, Ag Chair, B Sawe, F Lotuiya, M Chesikaw & PO Aol, Members May 29, 2026 Between David Wainaina Kihoro Claimant and John Kihunyu Gitogo Respondent Ruling 1.This ruling dispenses with the Notice of Motion Application is dated 12th March 2026 and supported by an affidavit sworn by one John Kihnyu Gitogo, the Respondent herein, and brought under Order 45 Rule 1 and Order 51 Rule 1 and 15 of the Civil Procedure Rules 2010, Secions 1A, 1B, 3A, 63 (e) and 80 of the Civil Procedure Act and all enabling provisions of the Law. The Application seeks the following orders:a.Spentb.Spentc.That this Honourable Tribunal be pleased to review, vary and/or set aside the order made this Honourable Tribunal on 12th March 2026 and in the said order made on 12th March, 2026 include an order granting order of stay of execution of Judgment delivered on 2nd March, 2023 pending the mention of the Applicant’s application dated 11th March, 2026 set down for mention on 17th June, 2026.d.That the costs of this Application be provided for. 2.The Application is premised on the grounds on its face which are inter alia that: in the Applicant’s Application dated 11th March 2026, the Applicant sought leave to liquidate the decrial sum herein by way of monthly instalments of Ksh. 50,000/- until payment in full. That this Tribunal fixed the Application for mention on 17th June 2026 with no provision for stay of execution pending the mention, and that the Applicant’s property is at risk of being attached and sold by Auctioneers on the instructions of the Respondent. That if the stay is not granted as sought, the Applicant’s application dated 11th March 2026 shall be rendered nugatory and that the Applicant shall suffer loss and damage. 3.AnalysisThe question before this Tribunal is whether the Applicant is entitled to the prayers sought, to wit a review, vary or set aside this Tribunal’s order issued on 12th March 2026, to include an order granting order of stay of execution. 4.Civil Procedure Rules, Order 45, Rule 1 provides that: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. 5.Under the above provisions of order 45 of the Civil Procedure Rules an order of the court may only be reviewed where it is shown that there is either an error apparent on the face of the record, where there is discovery of new and important evidence which could not be availed with due diligence at the time the order was being made or on any sufficient cause. 6.A review is not an opportunity to reconvince the court to change its mind, or to reconsider the evidence earlier submitted. Its application is limited as provided for by Order 45 of the Civil Procedure Rules. In this present matter, the Applicant has not shown any discovery of new and important evidence, or any error the Court made that is apparent on the face of the record. 7.In the upshot of the foregoing, we make the following orders;a.The Applicant’s notice of motion Application dated 12th March 2026 lacks merit and is hereby dismissed with costs. RULING DATED AND DELIVERED VIRTUALLY AT NAIROBI THIS 29TH DAY OF MAY, 2026.HON. J. MWATSAMA - AG. CHAIRPERSON SIGNED 29/5/2026HON. BEATRICE SAWE - MEMBER SIGNED 29/5/2026HON. FRIDAH LOTUIYA - MEMBER SIGNED 29/5/2026HON. MICHAEL CHESIKAW - MEMBER SIGNED 29/5/2026HON. P. AOL - MEMBER SIGNED 29/5/2026Court Assistant - Mutai