https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9569

Kimani v Law Society of Kenya & another (Civil Case E039 of 2025) [2026] KEHC 9569 (KLR) (Civ) (23 June 2026) (Ruling) Neutral citation: [2026] KEHC 9569 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Case E039 of 2025 SN Mutuku, J June 23, 2026 Between Stephen Mwangi Kimani Plaintiff and Law Society Of Kenya 1st Defendant Joseph Muchai Karanja 2nd Defendant Ruling The Application 1.The Applicant herein has moved this court through a Notice of Motion dated27th February 2026 based on Section 80 of the Civil Procedure Act; Orders 40 and 45 of the Civil Procedure Rules and Articles 28, 31 and 50 (1) of the Constitution of Kenya as well as all other enabling provisions of the law. 2.The Applicant seeks leave of the court to be served with the Affidavit sworn by Florence Muturi and file a Replying or Supplementary Affidavit in response thereto; review of the orders of this court dated 9th February 2026; orders restraining the 1st and 2nd Respondents, or anyone acting under their instructions, from reposting the Plaintiff on all social media platforms pending the determination of the restored application; an order directing the Respondents to take down all reposted images currently in circulation, pending determination of the restored application; orders summoning Florence Muturi for cross-examination; orders restraining the Respondents from making statements implying that the Applicant will not get justice and costs of this application. 3.The application is supported by the grounds advanced on the face of it and in the Supporting Affidavit sworn by the Applicant in which it is deposed that the Applicant filed an application dated 17th February 2025 seeking removal of his image from social media platforms to which the Respondents filed a Preliminary Objection dated 6th March 2025 challenging the competency of that application; that he filed a Further Affidavit dated 7th March 2025 and that the PO was dismissed on 6th May 2025 and directed that the matter proceeds to trial. 4.He has deposed that the Respondents relied on the Affidavit sworn by Florence Muturi which he had not been served with and therefore he did not have the opportunity to respond to the said affidavit; that during the ruling the court relied on the said affidavit; that it was at that moment that he became aware of the said affidavit and that failure to serve him with that affidavit denied him his right to fair hearing thereby prejudicing his case. 5.The Applicant has deposed that unless the orders sought are granted, he stands to suffer irreparable harm incapable of being adequately compensated by damages. The Response 6.The application is opposed by the Respondents through their joint Replying Affidavit sworn by Scolastica Nderi on 20th March 2026 in which it is deposed that the Applicant is misleading the court and concealing material facts from the court; that the Replying Affidavit dated 6th March 2025 was uploaded on the e-filing portal on 7th March 2025 and the same was served on him on the same day via email as shown in the Affidavit of Service dated 8th March 2025; that the Application before the court is vexatious, frivolous and an abuse of the court process and it does not meet the threshold provided under Order 45 of the Civil Procedure Rules as read with Section 80 of the Civil Procedure Act. 7.It is deposed, further, that the court has pronounced itself on the interim orders sought and that this matter ought to proceed to trial. 8.The Applicant filed a Further Affidavit dated 2nd April 2026. I have read the court record. I did not see any order from the court allowing the Applicant to file a Further Affidavit. Hon. Lady Justice Mulwa, who dealt with the Certificate of Urgency directed that the application dated 27th February 2026 be served for inter partes hearing before me on 9th April 2026 on which date I directed that the said application be argued orally on 11th May 2026. There was no application for leave to file Further Affidavit. In view of this, this court will not consider the Further Affidavit for having been filed without leave of the Court. Oral submissions 9.The instant application was argued orally on 11th May 2026. The Applicant submitted that he was not served with the Affidavit of Florence Muturi and therefore he did not respond to the issues stated in that affidavit. He termed the failure to serve him with that affidavit as an error apparent on the face of the record. He submitted that his image was placed on social media. He asked the court to set aside the order dismissing his earlier application and restore that application for hearing and determination. He asked the court to accord him with a fresh hearing of the application dated 17th February 2025 and award him costs. He also asked the court to direct the Respondents to pull down the image which still exists on social media platforms. 10.The Respondents, through their counsel, submitted that the application is misconceived, legally untenable and an abuse of the court process; that the Applicant has failed to meet the threshold established under Order 45 CPR and Section 80 CPA; that the Applicant ought to have appealed against the Ruling delivered on 9th February 2026 instead of filing this application. 11.In a rejoinder, the Applicant submitted that he has filed this application because of an error of having Florence Muturi, who is not known to the Applicant, file a Replying Affidavit which was not served on him; that had he known about the Replying Affidavit, he would have responded to it. Analysis and determination 12.I have considered the Application together with the affidavit in support, the Replying Affidavit and the rival oral submissions. The Applicant seeks a review or setting aside of the ruling delivered on 9th February 2026 and reinstating of the Applicant’s application dated 17th February 2025 as well as leave to the Applicant to respond to the replying affidavit sworn by Florence Muturi on 6th March 2025. He also seeks to be allowed to cross-examine the said deponent and injunctive orders against the Respondents pending hearing and determination of the application of 17.02.2025 upon its reinstatement. 13.The applicable principles in an application for review are found under Section 80 CPA and Order 45 CPR. These provisions state 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.” 14.To qualify for an order of review, an applicant must satisfy the court that there is: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 by him at the time when the decree was passed or the order mad, orb.some mistake or error apparent on the face of the record, orc.any other sufficient reason. 15.The Applicant relies on the principle of ‘error apparent on the face of the record.’ A part invoking this principle must meet the threshold set in the case of Muyodi v Industrial and Commercial Development Corporation & Anor [2006] 1 EA 243 where the Court of Appeal rendered itself in the following manner:“In Nyamogo and 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 a 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 apparent on the face of the record even though another view was also possible. Mere error or wrong view is certainly no ground for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” (emphasis mine). 16.Further, the Court of Appeal in the case of National Bank of Kenya Limited v Ndungu Njau [1997] KECA 71 (KLR) stated as follows on the issue of ‘error apparent on the face of the record’:“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.” 17.From a careful reading of the just-cited judicial authorities, it is clear that an error apparent on the face of the record must be self-evident, an error that does not require elaborate arguments to support it. 18.From my perusal of the contents of the application, the grounds supporting it and the arguments for and against, it is evident that the error alleged by the Applicant is that this court considered the contents of the Replying Affidavit sworn by Florence Muturi when the same had not been served upon the said Applicant, thereby denying him an opportunity to respond to it. 19.My careful perusal of the ruling delivered on 9th February 2026, shows that the Applicant’s application dated 17th February 2025 was dismissed for the reason that no substantive prayers or orders were sought therein. The Applicant merely sought interim orders which at the time of my determination of the aforesaid ruling, were spent and had therefore lapsed or been overtaken by events. 20.The above notwithstanding, it is clear that during the oral arguments of that application, the Respondents’ counsel Ms Nderi, argued in opposition to the application basing her arguments on the Replying Affidavit of Florence Muturi. Indeed, on 15th October 2025, the Applicant informed the court that he was seeking directions on his application dated 17th February 2025. Counsel for the Respondents, Ms Nderi informed the court that the Respondents had responded to the application and that parties could argue the same orally. 21.The record does not show the applicant raising issue that he had not been served with the Reply alluded to by Ms Nderi. He did not deny that the Respondents had responded to the application or that they had not served him with the Replying Affidavit. 22.I have carefully perused the court records both in the physical file and in the CTS platform. I have noted that there is an affidavit of service sworn by advocate Scolastica Nderi on 8th March 2025 evidencing service of the Respondents’ pleadings and Replying Affidavit in question, upon the Applicant via his email addresses. This was not denied by the Applicant at the time. 23.Consequently, it is my considered view, and I so find, that the Applicant has not demonstrated any self-evident error apparent on the face of the record, given that he had not raised the issue of lack of service of the Replying Affidavit he now questions. He has failed to meet the threshold for granting of an order for review. He has not demonstrated 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 mad, or some mistake or error apparent on the face of the record, or any other sufficient reason. 24.The upshot of this ruling is that the Notice of Motion dated 27th February 2026 lacks merit and is hereby dismissed with costs to the Respondents. 25.I direct parties to proceed with the case management proceedings before the Deputy Registrar in order to have the substantive suit heard and determined. It seems that the applicant is not keen to pursue that line even when it is clear that the pending applications do not prevent the parties from complying with the requirements of Order 11. 26.Orders shall issue accordingly. DATED, SIGNED AND DELIVERED THIS 23RD DAY OF JUNE 2026.S. N. MUTUKUJUDGE