https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12237

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **HIGH COURT MISC. APPLICATION NO. E1359 OF 2025** **STELLA MUMBI MBOGO…….…….DECREE HOLDER/APPLICANT** **VERSUS** **CENTSAVVY** **CREDIT LIMITED………….…JUDGMENT DEBTOR/RESPONDENT** **RULING** 1. The Applicant herein, Stella Mumbi Mbogo was dissatisfied with court’s ruling dated 30/04/2026 on the motion dated 23/09/2025. By a **motion dated 22/05/2026** sought Orders: 2. *That the Court be pleased to review its ruling delivered on 30/04/2026;* 3. *That the court do issue directions, orders and admit the decree that was passed by the lower court as the lower court has already pronounced itself that it has no jurisdiction to execute the decree.* 4. *That the court be pleased to allow the notice of motion dated 23/09/2025.* 5. The motion is predicated upon **Order 45 Rules 1 and 2 Order 51 Rule 1 of the Civil Procedure Rules (CPR); and Section 3A** of the Civil Procedure Act, and supported by the affidavit of the Applicant she swore on 22/05/2025 alongside grounds stated on its face of an even date. 6. The Applicant’s case as garnered from the affidavit material therefrom is that the lower court case; CMCC No. E353/24 was decided and judgment issued in her favour, that as the Decree Holder the instructed Auctioneers namely Expeditious Auctioneers to execute the decree by proclamation of the judgment Debtor’s (JD) assets on 12/11/2024, that upon proclamation the JD shut down its offices, relocated to an unknown place and cannot be traced. 7. She further posits that she filed a motion for orders to lift the JD’s veil of incorporation but was dismissed on 5/08/2025, the lower court stating that it had no jurisdiction to lift the veil of incorporation; and having pronounced itself that it has no jurisdiction to lift the veil of incorporation of the JD’s company, urges this court to exercise its discretion and allow the motion dated 23/09/2023 by way of review of its orders in the ruling dated 30/04/2026. 8. The Application is opposed by a replying affidavit sworn on 6/07/2026 by the Director of the Respondent Company one **Fredrick Ikayi,** whowhile admitting existence of the judgment of the Lower court, posits that it is the lower court that ought to execute the decree by dint of Section 34 of CPA, and that this court lacks jurisdiction to order execution of the said decree. The Director further averred that the instant motion is unmerited and ought to be dismissed with costs. 9. Parties were directed to file their submissions on the motion. **Applicant’s submissions** 1. In her submissions by counsel dated 9/07/2026, it is submitted that the lower court lacks jurisdiction to lift the veil of incorporation, that it is the High Court that is clothed with the requisite jurisdiction to hear the the instant application, urging for the court to allow the motion. **Respondent’s Submissions** 1. The submissions are dated 11/07/2026 filed by its advocates. While citing Section 34 of the Civil Procedure Act **(CPA),** it submits that the court that issues a decree is the only court that can execute the same, that lifting the rail of incorporation by a corporate company ought to be made in the court that issued the decree, to wit, the lower court. 2. It is further submitted that the orders that ought to be set aside are the lower court orders wherein it pronounce itself as lacking jurisdiction, not the orders of this court issued on 30/04/2026, and therefore the instant application made under **Order 45 CPR** has no merit, and ought to be dismissed. **Analysis and Determination** 1. The issues here for determination concern:- 2. *Whether this court ought to review and set aside its orders issued on 30/4/2026 under Order 45 of the CPR?* 3. *Whether this court ought to order and admit the Lower Court decree for execution, and thereby allow the Applicants application dated 23/9/2025?* 4. Questions in the instant motion revolve around provisions of **Order 45 CPR and Section 34 of the CPA.** **Order 34 CPR provides\_** *1) All questions arising between the parties to the suit in which the decree was passed, or in their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the court executing the decree and not by a separate suit.* 1. In the impugned ruling delivered on 30/4/2026 this court rendered, while discussing the Preliminary Objection raised by the Respondent, at par. 15 thereof, that the original jurisdiction of enforcement of a decree lies with the court that passes the decree as stated at **Section 34 CPA**, safe where special circumstances arise. It went on to cite **Section 31 (1) CPA** wherein the opposite, to wit, any other court may assume jurisdiction in rare circumstances. 2. **Order 45 of the Civil Procedure Act (CPR),** on the converse deals with specifically, review of a decree or order from which no appeal has been preferred; or upon 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 or on account of some mistake or error apparent on the fare of the record, or any other sufficient reason desires a review of the decree or order. 3. The matter of execution of decrees by the court that issues the decree, and transfer for execution to another has been discussed in our superior courts in numerous decisions. In **Kenya Tea Development Agency Holdings Ltd v. Lee Kimanthi & 2 Others and Dancan Nderitu Ndegwa V. Kenya Pipeline Co. Ltd (2018) eKLR** were cited in the ruling set to be reviewed. 4. Here, the courts pronounced themselves on the parameters for court’s exercise of its discretion to allow a court that did not pass the decree sought to be executed by dint of **Section 31(1)** **(d)** that provides thus:- *(d) if the court which passes the decree considers for any other reason, which it has recorded in writing, that the decree should be executed by such other court* *(2) the court which passed a decree may out of its own motion send it for execution to any court of inferior but competent jurisdiction.* 1. Here, the original court that passed the decree retains jurisdiction to execute the decree, that is to say, the Lower Court. I fully agree with the Respondent’s submissions that this application ought to have been filed in the lower court, not in this superior court, to urge it to relook at this ruling, and possibly reverse it, upon conditions set out at Order 45 Rule 1 CPR. 1. Even if this court were to be persuaded to exercise its discretion, and interrogate whether the Applicant has met the conditions set at **Order 45 Rule 1,** would it come to a positive finding? 2. *Discovery of new and important matter?* *Here without a doubt, the Applicant has brought to, fore nothing that was not placed before the court in its motion dated 23/9/2025.* 1. *Anything that was not within its knowledge or could not have been produced at time of hearing of the application dated 23/9/2025?* *On this, the Applicant was mum on this, absolutely said nothing; and on any other sufficient cause? Again nothing was provided to show why the court should be persuaded to review its ruling.* 1. *Error apparent or mistake on the face of the order?* No affidavit material was placed before the court to evidence any error or mistake on the face of the record in the impugned ruling 1. An order of review is a discretionary remedy that has to be made upon the court being persuaded that indeed the Applicant deserves grant of the order. It is not a chance remedy. It must show strong grounds upon which the court can anchor its discretion, as observed in **Kabansora Millers Ltd v Nyangena (2025) KEHC (KLR); David & 2 others v Bakonya (2025) KEHC 12790 KLR,** wherein the court firmly pronounced that; a court can review its decision on either of the grounds enumerated at **Order 45 Rule 1** and not otherwise. 2. That the expression *“any other sufficient reason”,* appearing at **Order 45 Rule 1** has to be interpreted in light of other specified grounds; that an erroneous order or decision cannot be corrected. 3. The court went on to render that mere discovery of new or important matter or evidence is not sufficient ground for review, but such party must also demonstrate that such evidence was not within its knowledge, and the reason that it could not be produced at the time. 4. The Court of Appeal has stated and reiterated the above parameters in its several decisions, to wit:- **Republic v Advocates Disciplinary Tribunal Ex Parte Apollo Mboya (2019) KEHC 6379 (KLR); National Bank of Kenya v Ndungu Njau (Civil Appeal No. 2111/1996; Nyamongo & Nyamongo v Kogo (2001) EA 170 among many others.** 1. Deriving from the above, it is evident that the Applicant has not met the threshold for review of a court order or decree; having failed to demonstrate compliance with any of the parameters under **Order 45 CPR**. 2. The Applicant has not told the Court why it could not have appealed against the lower court’s decision in CMCC No. E353/2022 on grounds of lacking the requisite jurisdiction to execute the decree, but opting to pursue the review option. 3. In numerous decisions, among them the cited ones above, the superior courts have observed and held that an erroneous order or decision of a court cannot be corrected by an order of review but only on appeal. 4. **For the foregoing, the court is not persuaded to grant the orders sought in the motion dated 22/5/2026. It is dismissed with costs to the Respondent.** **It is so ordered.** **Delivered Dated and Signed at Nairobi this 30th Day of July 2026.** **JANET MULWA.** **JUDGE**