https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12865

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **MISCELLANEOUS APPLICATION NO. E43 OF 2022** **KIPLENGE AND KURGAT ADVOCATES..................APPLICANT** **VERSUS** **THE ESTATE OF WILLIAM KIMENJO MOSONIK..........................................................RESPONDENT** **RULING** 1. The Applicant's Notice of Motion dated 9th December 2025 seeks the following substantive orders: 1. ***Spent.*** 2. ***Spent.*** 3. ***THAT this Honourable Court be pleased to review, vary or set aside its Ruling delivered on 30th January 2025 and order that the Applicant's Bill of costs dated 9th September 2022 was not time barred.*** 4. ***THAT this Honourable Court be pleased to find that the last legal service was rendered in 2017, in accordance with the amended grant on record.*** 5. ***THAT this honourable court be pleased to reinstate the Advocate-Client bill of costs dated 9th September 2022 and direct that the bill be taxed on merit.*** 6. ***THAT the costs of this application be in the cause.*** 2. The application is premised on the grounds set out in the body of the Motion and is supported by the Affidavit of AMOS ANDAMA, Advocate, sworn on 9th December 2025, and a Further Affidavit sworn on 27th January 2026. 3. The gravamen of the Applicant's case is that this Court, in its Ruling delivered on 30th January 2025, made an error apparent on the face of the record. The Applicant contends that while delivering the said Ruling, this Court inadvertently and/or mistakenly failed to consider the fact that time for purposes of the Limitation of Actions Act could only have started running from 23rd March 2017 when the grant was rectified. 4. It is the Applicant's case that the rectified grant was annexed to the Applicant's Replying Affidavit sworn on 24th January 2024 by Mr. Amos Andama as "Annexure AA2" which, it is contended, slipped or escaped this Court's attention. The Applicant asserts that this Court only confined itself to the proceedings terminating with a Certificate of Confirmation of Grant issued in 2012 and concluded that the Applicant's services ended in 2012. 5. The Applicant maintains that if the grant was rectified in 2017, time only started running from 2017 and up to the date the Ruling was delivered, the Bill of Costs was still filed within the required time. The Applicant further contends that the oversight by this Court directly affects the bill valued at Kshs. 392,381,539/= and unless corrected, the Applicant will suffer massive financial prejudice. 6. It is the Applicant's position that this Court's finding that no evidence was provided and yet there was a rectified grant in 2017 constitutes a clear and manifest error apparent on the face of the record, warranting a review under Order 45. It further constitutes sufficient cause to warrant an order reviewing the Ruling of the Court. The Applicant explains that following the impugned Ruling, it sought extension of time to appeal before the Court of Appeal in COA CAPPE No. 035 of 2025, which application was dismissed on 31st October 2025 without determination of the merits. The Applicant thereafter invoked this Honourable Court's review jurisdiction. 7. In support of its application, the Applicant filed written submissions dated 27th January 2026. On the issue of jurisdiction, the Applicant submitted that the jurisdiction of this Honourable Court to review its decisions is anchored in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Applicant further submitted that the Respondent's contention that the Applicant elected an appeal is legally untenable. The Applicant relied on ***Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR*** for the proposition that a party is not barred from seeking review where an appeal has not been determined on its merits. The Applicant also relied on ***Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR***, where the Court of Appeal reaffirmed that review remains available unless an appellate court has conclusively pronounced itself on the substantive issues. 8. On the issue of error apparent on the face of the record, the Applicant submitted that the Court's failure to consider the rectified Confirmed Grant dated 23rd March 2017 constituted a patent error in the interpretation of evidence on record, a misapprehension of the legal consequences of the confirmed grant, and a failure to consider material facts that were already on record but inadvertently overlooked. The Applicant placed reliance on the concurring opinion of Mutunga, CJ in ***Rai v Rai***, where he emphatically stated that "there is no injustice that the Constitution of Kenya is powerless to redress." The Applicant also relied on ***Kithoi v Kioko (1982) KLR 177 at page 181***, where the Court held as follows: *"......the Civil Procedure Rules Order XLIV demands inter alia, that an application for review must be based in the discovery of new and important evidence which 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 on the face of the record or for any other sufficient reason. The application for review must strictly prove the grounds for review, except for review on the ground of mistake or error apparent on the record, failing which the application will not be granted."* 9. On the issue of delay, the Applicant submitted that the period complained of is reasonably explained by the pendency of proceedings before the Court of Appeal, continued engagement between the parties and the Applicant's diligence upon crystallization of the grounds for review. The Applicant contended that delay alone is not fatal to an application for review unless it is shown to be inexcusable and prejudicial, which has not been demonstrated by the Respondent. The Applicant cited ***Shabbir Ali Jusab v Annar Osman & another, Supreme Court Civil Application No 1 of 2013***, where the court disregarded procedural technicalities in favour of substantive justice, and ***Joseph Kiangoi v Wachira Waruru & 2 others, Civil Appeal (Application) No 30 of 2008***, where the Court of Appeal declined to strike out an appeal where a notice of appeal was not served within the stipulated time. 10. The Applicant further contended that the Respondent has failed to establish any actual prejudice that cannot be compensated by costs, and that allegations of completed succession and distribution do not extinguish a legitimate claim for professional fees duly earned and lawfully chargeable. The Applicant urged this Court to find that the delay was neither deliberate nor inordinate, and that the Applicant moved to court at the earliest reasonable opportunity after the Court of Appeal declined jurisdiction. 11. The application is vehemently opposed. The Respondent filed a Replying Affidavit sworn by JOHN KIBET MOSONIK MENJO on 22nd December 2025. The Respondent's case is that the instant application is frivolous, vexatious, not brought before this Honourable Court in good faith, and is an abuse of this Court's process with the sole intent to deprive the Respondent of the fruits of the Ruling of the High Court dated 30th January 2025. The Respondent contends that the Applicant has not come to this Court with clean hands for they have conveniently failed to disclose to the Court that upon the issuance of the Ruling dated 30th January 2025, they chose the appeal route and, in that regard, filed a Notice of Motion dated 26th March 2025 seeking Extension of Time to file an appeal before the Court of Appeal in COACAPPI, E035 OF 2025. The Respondent annexes a copy of the Ruling of the Court of Appeal dated 31st October 2025 as "JKMM 1". 12. It is the Respondent's position that a party aggrieved by an order of the High Court can either appeal against the order to the Court of Appeal if there is a right of appeal or may opt for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules where there is no right of appeal, or if there is a right of appeal, no appeal has been preferred. The Respondent contends that these options are in the alternative and are not concurrent. According to the Respondent, even a plain reading of Order 45 leaves no doubt that an application for review and an appeal are intended to be alternative remedies. 13. The Respondent further contends that it has been over 10 months after the Ruling was delivered on 30th January 2025, which is way inordinate time to file an application for review, a clear affront to the provision of Order 45 requiring the application to be made without unreasonable delay to the court that passed the order. The Respondent notes that no iota of explanation has been offered to enlighten the court why it took more than ten (10) months to file the present application. The Respondent also asserts that the Applicant delayed in submitting their Bill of Costs for Taxation while producing wanting evidence to support the same leading to the Ruling of this Court. They subsequently delayed in filing their appeal prompting them to file an application before the Court of Appeal to file an appeal out of time and now seek review ten (10) months later again way out of time, and no leave has been sought for this, nor explanation given for the delay. 14. The Respondent contends that the fact that the Grant was confirmed in respect of the deceased's estate on 30th August 2012 is not in question. Further, that the Applicant's fees of Kshs. 2,000,000/= were embedded in the said grant as part of debts due from the estate at page 5 of the grant settling the matter of legal fees. The Respondent maintains that the Applicant had the role of disbursing the funds as per the grant and they paid themselves their fees as per the grant, hence not a single fee note nor invoice was raised in the matter thereafter. 15. The Respondent submits that the Respondent stands to suffer irreparable harm if the application for review and stay order are granted as the estate has already undergone succession as per Confirmation of Grant dated 30th August 2012. The Respondent urges this Court to dismiss the application with costs. 16. The Respondent also filed written submissions dated 9th February 2026.On the threshold for review, the Respondent submitted that the Applicant had not adduced any evidence nor demonstrated any of the statutory grounds to warrant a review of the ruling delivered on 30th January 2025. The Respondent contended that the court inter alia noted the failure by the applicant to avail fresh instructions leading to the rectification of grant in 2017, that is five years after the confirmation of grant in the year 2012, and secondly lack of issuing final fee note to the Respondents. The Respondent submitted that it is trite in law that parties are bound by their pleadings and thus they cannot fault the Honourable court for their negligence and or failures. 17. On the issue of appeal versus review, the Respondent submitted that review and appeal are alternative remedies, not concurrent remedies, and that this position is grounded in the plain wording of Order 45 Rule 1(b) which has it that "any person considering himself aggrieved by a decree or order from which no appeal is hereby allowed." The Respondent relied on the decision in ***HA v LB (Civil Appeal 188 of 2021) [2022] KEHC 2886 (KLR)*** where the Court of Appeal stated that both options cannot be pursued concurrently or one after the other. The Respondent further relied on ***African Airlines International Limited v Eastern & Southern Africa Trade Bank Limited (2003) 1 EA 1 (CAK).*** The Respondent also relied on ***Gerald Kithu Muchanie v Catherine Muthoni Ngare & another [2020] KECA 511 (KLR)***, for the proposition that both remedies of review and appeal cannot be pursued on the same decision. 18. On the issue of unreasonable delay, the Respondent relied on ***Stephen Gathua Kimani v Nancy Wanjira Waruingu (t/a Providence Auctioneers) [2016] KEHC 6883 (KLR)*** where the court stated inter alia: *"..........Under normal circumstances it should not take an applicant one year to file an application in court. It would require sufficient explanation to justify a delay of one year. To my mind this is a long period, and indeed an unreasonable delay. Such a long delay must be sufficiently explained."* 19. The Respondent further relied on ***John Agina v Abdulswamad Sharif Ali*** where Cockar, Akiwumi and Tunoi had this to say: *"An unexplained delay of two years in making an application for review under Order 44 Rule 1 (now Order 45 Rule 1) is not the type of 'sufficient reason' that will earn sympathy from any court."* 20. The Respondent also cited the Court of Appeal in ***Francis Origo & Another v Jacob Kumali Mungala*** which succinctly stated: *"In an application for review an applicant must show that there has been discovery of new and important matter or evidence which after due diligence was not within his knowledge or could not be produced at that time or he must show that there is some mistake or error apparent on the face of the record or that there was any other sufficient reason AND most importantly the applicant must make the application for review without unreasonable delay*." 21. The Respondent submitted that equity does not aid the indolent, and that delay defeats equity. The Respondent further submitted that the Applicant has a history of delay in the matter, including delay in submission of the Bill of Costs, delay in filing the appeal process, and failure to comply with court directions on filing responses and submissions. 22. I have carefully considered the application on record, the rival submissions by both counsels, and the authorities cited. I have also perused the record of the Court of Appeal proceedings in COA CAPPE No. 035 of 2025. In my view, the following issues arise for determination: *(a) Whether this Court has jurisdiction to review its Ruling delivered on 30th January 2025.* *(b) Whether the Applicant has met the threshold for review under Order 45 Rule 1 of the Civil Procedure Rules.* *(c) Whether the Applicant is procedurally barred from seeking review having already invoked the appellate process.* *(d) Whether the application was made without unreasonable delay.* *(f) Who should bear the costs of this application.* 23. The jurisdiction of this Court to review its decisions is anchored in Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. Section 80 of the Civil Procedure Act 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 judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit." 24. Order 45 Rule 1 of the Civil Procedure Rules 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 judgment to the court which passed the decree or made the order without unreasonable delay." 25. There is no dispute that this Court has jurisdiction to review its own decisions. The question is whether the Applicant has brought itself within the parameters of the said jurisdiction. 26. The Applicant relies on the ground of "error apparent on the face of the record." In ***Nyamogo & Nyamogo v Kogo (2001) EA 174***, the Court of Appeal addressed this ground as follows: *"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 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."* 27. The Applicant claims that this Court overlooked the rectified Confirmed Grant dated 23rd March 2017. In paragraph 19 of the impugned Ruling, this Court stated: *".....In the current case, there is no doubt that the work ended over ten (10) years ago as seen in the certificate of confirmation of grant attached to the respondent's submissions. No evidence was adduced by the applicant to the contrary and neither was the alleged amended grant dated 23rd March 2017 availed."* 28. The Applicant now contends that the 2017 grant was indeed availed as "Annexure AA2." If this is correct, then the Court's finding that "no evidence was adduced" would constitute an error apparent on the face of the record. I must, however, observe that in the Further Affidavit, the Applicant maintains that the document was on record and was inadvertently overlooked. This is a serious assertion which, if true, would mean that this Court's finding was erroneous. The Respondent, however, contends that the Applicant failed to avail the said evidence. This is a matter that goes to the very heart of the application. 29. The Respondent submits that review and appeal are alternative remedies, and that having elected to pursue an appeal, the Applicant is now estopped from seeking review. This submission finds support in the plain wording of Order 45 Rule 1(b) which has it that review is available to "any person considering himself aggrieved by a decree or order from which no appeal is hereby allowed." 30. In ***African Airlines International Limited v Eastern & Southern Africa Trade Bank Limited (2003) 1 EA 1 (CAK)***, the Court stated: *"It probably hoped that if the application for review failed it would then pursue the appeal. It was gambling with the law and judicial process. It is precisely to avoid this kind of scenario that the option to review was put in place. ........By filing an application for leave to appeal and at the same time seeking to review the same decision they intend to appeal against, the applicants are pursuing both processes concurrently in contravention of the above provisions. On this ground, their plea for review collapses*." 31. In ***Gerald Kithu Muchanie v Catherine Muthoni Ngare & another [2020] KECA 511 (KLR),*** the Court stated: *".........In the instant application, the applicant exhausted the process of review proceedings and now wishes to go back and try his luck once again with an appeal against the original judgment. The applicant wants to have a second bite of the same cherry and he cannot be permitted to do so. There is no doubt that this will cause prejudice to the respondents. Litigation must come to an end somehow and it cannot be conducted on the basis of trial and error. An appeal could only lie on the outcome of the application for review."* 32. The Applicant contends that the Court of Appeal's dismissal was procedural and did not determine the merits of the intended appeal. In ***Benjoh Amalgamated Limited & Another v Kenya Commercial Bank Limited [2014] eKLR***, the Court of Appeal addressed the jurisdiction of the Court to review its own decisions and held that residual jurisdiction exists but should be invoked with circumspection and only in cases whose decisions are not appealable to the Supreme Court. 33. In the present case, the Court of Appeal's Ruling in COA CAPPE No. 035 of 2025 was strictly procedural. It did not address the substantive merits of the intended appeal, nor did it pronounce on the validity of the Bill of Costs or the limitation issue. The question of whether the 2017 rectified grant was overlooked remains an issue that has not been substantively determined by any appellate court. However, it must be remembered that the Applicant failed to disclose to this Court that they had already approached the Court of Appeal. A party who fails to disclose material facts to the Court cannot be said to have come with clean hands. This is a serious matter that goes to the Applicant's good faith and must be taken into account. 34. The Applicant filed the review application on 9th December 2025, approximately ten months and nine days after the Ruling was delivered on 30th January 2025.In ***Francis Origo & Another v Jacob Kumali Mungala***, the Court of Appeal stated that in an application for review, the applicant must show that there has been discovery of new and important matter or evidence which after due diligence was not within his knowledge or could not be produced at that time, or he must show that there is some mistake or error apparent on the face of the record or that there was any other sufficient reason, "AND most importantly the applicant must make the application for review without unreasonable delay." 35. In ***John Agina v Abdulswamad Sharif Alwi,*** ***(19) Cockar***, the Court of Appeal held that an unexplained delay of two years in making an application for review under Order 45 Rule 1 is not the type of "sufficient reason" that will earn sympathy from any court. 36. The Applicant seeks to explain this delay by arguing that they were diligently pursuing the appeal process and only filed for review after the Court of Appeal dismissed their application on 31st October 2025. The period from the Court of Appeal's dismissal to the filing of the review application is approximately 40 days, which is unreasonable. No explanation has been offered for this. 37. Equity aids the vigilant, not the indolent. A party who has a history of delay cannot expect the Court to exercise its discretion in their favour. 38. As to costs, it is a well-established principle that costs follow the event. The Respondent having successfully opposed this application, is entitled to costs. Consequently, costs are awarded to the Respondent payable by the Applicant. 39. In light of the foregoing, I find that the Applicant's Notice of Motion dated 9th December 2025 has no merit and is hereby dismissed with costs. **Dated, signed and delivered at Nakuru this 14th day of August, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Ruto C/A Litunda for the Respondent N/A for the Applicant