https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11162

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CONSTITUTIONAL AND HUMAN RIGHTS DIVISION** **PETITION NO. E 376 OF 2022** **OWUOR E. MBOYA………………………..……PETITIONER/APPLICANT** **VERSUS** **KENYATTA UNIVERSITY …………………………..……….RESPONDENT** **RULING** **INTRODUCTION** 1. The Applicant’s Notice of Motion dated 15th April 2026 seeks, *inter alia*, the review of the ruling delivered on 12th February 2026 by Hon. Justice L. Mugambi, the setting aside of consequential orders, and a finding of contempt against the Respondent for alleged failure to avail the Applicant’s missing marks in Guitar Skills MDT 223 and Theory of Aural Skills MDT 200. 2. The Application is supported by the affidavit of Owour E. Mboya, sworn on the same date. He avers that the Court’s judgment of 4th October 2024 compelled the Respondent to provide the missing marks, and that the Respondent’s subsequent report, filed in response to contempt proceedings, was “deficient.” He contends that the Court erroneously approved that report and exonerated the contemnors notwithstanding what he terms “manifest and glaring deficiencies.” 3. The Applicant asserts that the Court failed to address the “critical issue” of disclosure of marks and is aggrieved by the direction requiring him to retake the units. He argues that any loss of marks attributable to the Respondent’s negligence should not prejudice him in time, cost, or opportunity. 4. The Respondent opposes the Application through a Preliminary Objection dated 10th June 2026, asserting that the Court is *functus officio*, and that the Application is fatally defective, having failed to meet the threshold for review under Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. 5. The application was canvassed via written submissions, by the time I retired to write this ruling, only the applicant filed submissions dated 9th July 2026. The Applicant identifies three issues: a. Whether the Application dated 15th April 2026 is meritorious; b. Whether the Court is *functus officio*; c. Costs. 1. The determinative question is whether the Applicant has brought himself within the strict statutory parameters governing review under Section 80 CPA and Order 45 CPR 2. Order 45 of the Civil Procedure Code sets out the parameters for an application for review as follows:- **Rule 1 (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 order made or made the order without unreasonable delay.** **(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate court the case which he applies for the review.** 1. The Applicant acknowledges, that the doctrine of *functus officio* is firmly established by the decisions in **Raila Odinga & Others v Independent Electoral and Boundaries Commission & Others [2013] eKLR** and **Telkom Kenya Limited v John Ochanda (Suing on his own behalf and on behalf of 996 former Employees of Telkom Kenya Limited) [2014] eKLR.** These authorities underscore the constitutional value of finality in litigation. 2. A court may revisit its final orders only in narrowly delineated circumstances, including; Review under Section 80 of the Civil Procedure Act as read with Order 45 of the Civil procedure Rules; Correction of accidental slips; enforcement of its judgment. The Applicant relies on **Re Estate of Kinuthia Mahuti [2018] eKLR**, which affirms that the Court’s review jurisdiction remains available where the statutory threshold is met. 3. The Applicant contends that the Court erred in finding that the Respondent had complied with the judgment and in marking the matter as closed. He argues that the Court failed to address the disclosure of marks. 4. The settled authority on what constitutes an error apparent is the Court of Appeal’s decision in **National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR)**, where the Court held: **[16] 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… Misconstruing a statute or other provision of law cannot be a ground for review.”** 1. The Court further held: **[17] If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review… Otherwise we agree that the learned Judge would be sitting in appeal on his own judgment which is not permissible in law.”** 1. The Applicant’s grievance is that the Court misapprehended the facts, approved a deficient report, and exonerated the contemnors. On 12th February 2026, after hearing counsel for both the Petitioner and the respondent the Court issued the impugned ruling which I reproduce hereunder- **Court: The Court has heard the Report by the Respondent and the response by the Petitioners. The Court has after carefully going through the respondent’s report and comparing it with order (c) in the judgment has ascertained and confirmed that the respondent has fully complied with the judgment for it has not provided the petitioner with a clear path-way on the steps he requires to undertake to complete the two units- Guitar skills MDT 223, a theory of Aural Skills – MDT 200 to facilitate his graduation.** **The Court finds that the respondent has fully complied and has no further obligation.** **[The] respondent is discharged and the file is now closed.** (Emphasis Mine) 1. Evidently, these are matters of judicial evaluation, reasoning, and discretion, not self‑evident errors. 2. The Court of Appeal addressed this distinction exhaustively in **Swai v Kenya Breweries Limited [2014] KECA 883 (KLR)**, stating: **“[27]… an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal.”** 1. The Court continued: **“[29]… If parties were allowed to seek review of decisions on grounds that the decisions are erroneous in law… a dangerous precedent would be set… exposing decisions to attacks under the guise of review when such courts are functus officio…”** 1. The Applicant’s complaint requires the Court to revisit its reasoning. This is precisely what review jurisdiction does not permit. It would amount to the Court sitting on appeal over its own decision, contrary to established doctrine. 2. In conclusion, therefore, I find that the applicant has not brought himself within the ambit of Section 80 of the Civil Procedure Act and Order 45, Rule 1 of the Civil Procedure Rules; accordingly, the application is dismissed in its entirety. 3. Having regard to the circumstances of this case and the amount of time the parties have been in court, each party will bear their own costs. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI this 23RD JULY 2026.** **P.M. NYAUNDI** **JUDGE** **In the Presence of** Fardosa Court Assistant Gitahi Njuguan for Petitioner/Applicant Wakhui for Respondent