https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7327

**REPUBLIC OF KENYA IN THE HIGH COURT AT THIKA HIGH COURT CIVIL APPEAL NO. E300 OF 2025** **MANISHA MORJARIA BAHVESH ........................... APPELLANT VERSUS RIDGES RITZ INVESTMENT LIMITED ................ RESPONDENT** **JUDGMENT** 1. This appeal arises from the decision of the Small Claims Court dismissing the Appellant’s claim for special damages of Kshs. 343,000 arising from a road traffic accident that occurred on 6th June 2023. It was the Appellant’s claim that the Respondent’s driver, servant and/or authorized agent drove so recklessly their motor vehicle registration number KDK 042W occasioning an accident which damaged the Appellant’s motor vehicle KCG 383U. 2. After a full hearing, the trial court dismissed the claim, finding that negligence was not properly pleaded and that the claim was not proved on a balance of probabilities. 3. The Appellant subsequently filed an application for review and setting aside of the judgment together with leave to amend the statement of claim. The trial court dismissed the application, holding that it was functus officio. 4. Aggrieved with the decision of the court, the Appellant filed an application dated 19th August 2024 for orders: 5. *Spent* 6. *That pending the hearing and determination of the application ex-parte the Honourable court be pleased to set aside the judgment of Hon. Jacklyne Khalimesi Tawai of 29th April 2024.* 7. *That upon the hearing and determination of the application the Honourable court be pleased to issue orders set aside/quash the judgment of Hon. Jacklyne Khalimesi Tawai of 29th April 2024.* 8. *That upon hearing of this application, this Honourable Court do grant leave to the Claimant to amend its statement of Claim dated the 2nd day of March 2024.* 9. *That the annexed statement of claim dated 19th August 202, be deemed as duly filed.* 10. *That upon leave to amend statement of claim to Claimant being granted, Respondent be granted corresponding leave to amend the pleadings/ defence if need be.* 11. *That upon the hearing and determination of the application the Honourable court do review the judgment of 29th April 2024 in light of the amended statement of claim dated 19th August 2024.* 12. *That costs be awarded to the Claimant/ Applicant.* 13. In summary, the Appellant sought to have the judgement set aside, proceedings be reopened and leave granted for the Statement of Claim to be amended. 14. The Respondent did not file a response to the application. Parties submitted orally. 15. The appeal was canvassed by way of written submissions by parties. The Appellant presented two issues for determination. Whether appeal herein should be determined on merit and who should bear the costs of this Application. The Respondent in summary submitted on whether the Honourable court justly determined the Appellant’s application. 16. The duty of this court as a first appellant court, is to re-evaluate as well as examine afresh the evidence and to arrive at the court’s own conclusion having regard to the fact that the court has not seen or heard the witnesses. This position was stated in the case of **Selle & Another v. Associated Motor Boat Company Ltd & Others (1968) EA 123** as follows: **“… This Court must reconsider the evidence, evaluate itself and draw its own conclusions though it shall always bear in mind that it had neither seen or heard the witness and should made due allowance in that respect …”** 1. The court has considered the grounds laid out on the Supplementary Certificate of record of Appeal, the pleadings and the submissions of the parties and I find that finds that the primarily issue for determination is whether the trial court erred in holding that it was functus officio and declining to review its judgment. 2. The trial court entertained the Appellants claim for special damages, heard parties and determined the matter to its logical conclusion and thereafter pronounced itself. The Appellant dissatisfied with the judgment of the court, filed whether the trial court erred in holding that it was *functus officio* and declining to review its judgment. 3. The doctrine of *functus officio* underscores the principle of finality in litigation as affirmed in **Raila Odinga & Others v IEBC & Others (2013) eKLR.** Similarly, the Court of Appeal in **Telkom Kenya Ltd v John Ochanda (2014) eKLR**, held that once a court renders a final decision, it cannot revisit the matter except as provided by law. The same position was restated in **John Gilbert Ouma v Kenya Ferry Services Ltd (2021) eKLR, where** it was held that functus officio bars merit-based reconsideration after judgment. In **National Bank of Kenya Ltd v Ndungu Njau (1997) eKLR,** the court held that review is only available for error apparent on the face of the record, discovery of new evidence, or other sufficient reason. In **Pancras T. Swai v Kenya Breweries Ltd (2014) eKLR**, the Court of Appeal emphasized that review cannot be used as an appeal in disguise. 4. Review jurisdiction is governed by **Section 80 of the Civil Procedure Act** and **Order 45 Rule 1 of the Civil Procedure Rules** providing for review of judgments, but only under strict conditions, discovery of new and important evidence, error apparent on the face of the record and other sufficient reason. This limited review power is an exception to *functus officio* and not a contradiction of it. 5. While **Article 159(2)(d) of the Constitution** requires courts to administer justice without undue regard to technicalities, it does not cure evidentiary deficiencies. However, it was held in **Nicholas Kiptoo Arap Korir Salat v IEBC & 7 Others (2014) eKLR, the Supreme Court** held that **Article 159** is not a panacea for all procedural shortcomings. 6. In **National Bank of Kenya Ltd v Ndungu Njau (1997) eKLR,** the court held that review is only available for error apparent on the face of the record, discovery of new evidence, or other sufficient reason. In **Pancras T. Swai v Kenya Breweries Ltd (2014) eKLR**, the Court of Appeal emphasized that review cannot be used as an appeal in disguise. 7. In the present case, the Appellant failed to demonstrate discovery of new evidence, error apparent, or sufficient reason to warrant review. The application instead sought to reopen the case and introduce matters that ought to have been raised at trial. As held in **Francis Origo & Another v Jacob Kumali Mungala (2005) eKLR**, review cannot be used to fill gaps in evidence. 8. The Appellant in the instant case sought to adduce additional evidence, an assessment report in support of his special damages claim. The law on special damages is settled that they must be specifically pleaded and strictly proved as was held in **Hahn v Singh (1985) KLR 716.** In **Capital Fish Kenya Ltd v Kenya Power & Lighting Co. Ltd (2016) eKLR,** failure to produce documentary evidence was held to be fatal. 9. Accordingly, I find that the trial court properly applied the doctrine of *functus officio* and correctly declined to review its judgment. I therefore find that this appeal lacks merit and proceed to dismiss it. As to the issue of costs, this court exercises its discretion and have each party bear its own costs. 10. ***Final Orders: Appeal is dismissed.*** 11. ***Each party to bear their cost.*** **Dated, Signed and Delivered Virtually on this 28th day of May 2026.** **HON. T. W. OUYA, OGW** **JUDGE** **In the presence of:** Ms. Otieno for Ms. Bitok for Respondent No appearance for Appellants Hamza – Court Assistant