Media Council of Kenya v Odanga (Civil Appeal E059 of 2024) [2026] KEHC 8570 (KLR) (19 June 2026) (Ruling)

Media Council of Kenya v Odanga (Civil Appeal E059 of 2024) [2026] KEHC 8570 (KLR) (19 June 2026) (Ruling) Neutral citation: [2026] KEHC 8570 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E059 of 2024 DK Kemei, J June 19, 2026 Between Media Council of Kenya Appellant and Josiah Omolo Odanga Respondent (An appeal arising from the judgment dated 4th November 2024, the ruling and orders of the Magistrate’s Court at Siaya (Hon. Maiyo Chepchirchir Christabel) dated 13th November 2024 in MCCC E048 of 2024) Ruling 1.The Respondent/Applicant herein filed and application dated 7th November, 2025 seeking the following orders; -i.Spent.ii.This Honourable Court be pleased to review its judgment delivered on 26th September, 2025.iii.Costs of the application be provided for. 2.The application is supported by the grounds set out thereunder and by the annexed affidavit of Josiah Omolo Odanga sworn on even date. The Respondent’s gravamen is inter alia; that the Appellant filed an appeal via their memorandum of appeal and record of appeal dated 20th November 2024 and 3th March 2025 respectively seeking to set aside the judgment of the trial Court delivered on 4th September 2024; that parties filed their submission and highlighted it before this Court and judgment was reserved for 26th September 2025; that all this while, the trial Court had dismissed an application by the Appellant to set aside its default judgment against the Appellant; that subsequently, the Appellant filed an appeal to challenge this decision by the trial Court dismissing their Application to set aside the default judgment against it; that parties filed their submission to the appeal and highlighted their submissions before this Honourable Court on 3rd July 2025 and that a judgment date was reserved for 26th September 2025; that in its judgment, this Honourable Court found merit with the Appellant's appeal and moved to set aside the default judgment by the trial court dated 4th September 2024; that further, this Honourable Court directed that the Appellant file its memorandum of appearance and defence within 7 days after delivery of the judgment; that said Judgment delivered on 26th September 2025 has a mistake and an error apparent on the face of the record and prejudicial to the Respondent's interests more so in setting aside the successful judgment of the trial Court; that this Honourable Court stated that the Appellant's defence raised triable issues which merited it to be allowed for trial; that the Judgment further stated that the Appellant stated that it had a defence and that the Respondent was not opposed to the Appellant filing their defence in their replying affidavit dated 14th October 2024 and could be compensated by receiving throw away costs; that these averments by this Honourable Court are prejudicial towards the Respondent as the Appellant did not file their defence in the trial Court neither did they annex a draft defence in their application to set aside the default judgment dated 8th October 2024; that the Respondent also opposed the filing of a defence by the Appellant since they had not even annexed a draft defence to their application to set aside default judgment; that the Respondent only prayed that the Court grant him throw away costs calculated at 10% of the decretal sum in the event the court found merit with the Appellant's application; that the Judgment by this Honourable Court only granted the Respondent KES. 30,000 as throw away costs stating that this was the Respondent's wish as per their replying affidavit; that this was not right as the Respondent sought KES. 300,000 if the trial court decided to allow the application by the Appellant; that it is in the interest of justice that this application be allowed and the error corrected to allow the Respondent to enjoy the fruits of a successful judgment. 3.The Appellant opposed the application and filed a replying affidavit dated 28th February, 2026 sworn by its Regulatory Affairs Manager Terrence Bavon Minishi who averred inter alia; that from the onset, the instant application is not only frivolous but marred with gross malice, vexatious and an affront to the doctrine of finality of judicial proceedings without any tangible basis, reason or iota of proof to warrant the grant of the orders sought; that the application is grossly defective and brought Under Article 53 (1) (e) and (2) of the Constitution of Kenya, 2010; Sections 102, 103, 104, 108, 110, 111, 113 of the Children Act No. 29 of 2022; Regulation 4 of Children (Practice and Procedure Parental Responsibility) Regulations, 2002 and all enabling provisions of law, which provisions cannot support nor initiate a review before this honourable court and thus the application therefore falls flat on its belly at this point; that nevertheless the instant application, filed close to two months after the delivery of the Judgment and past the statutory appeal period, is clearly an afterthought whose prayers and grounds in support seek to challenge the discretionary mandate granted to this honourable court in considering whether or not to grant a party costs rather than to address an error on the face of the record to warrant a review of the Judgement; that as costs follow the event, the same ought to be considered based on the value of the subject matter; that In this case and the matter before the lower court, the subject value of the suit was unascertainable and unquantified; that it therefore follows that no particular value would be the basis for grant of costs to the Respondent nor the thrown away costs due to him in the wake of setting aside the lower court Judgement; that without prejudice to the foregoing, an award for costs in this instance was purely discretionary, which costs ought to be reasonable as to compensate the Respondent for being taken back in the lower court and cannot be pegged on the decretal sum awarded at the lower court; that nevertheless, the thrown away costs, as opposed to security for costs, cannot be so exorbitant as to bar a party from participating in the trial court's proceedings; that in any event, the basis for seeking a review as stated at paragraphs (j) and (k) of the grounds in support of the application is an alleged prayer that the court grants the Applicant herein throw away costs calculated at 10% of the decretal sum amounting to Kshs. 300,000. The failure to grant the same cannot therefore amount to an error on the face of the record to support an application for review as contemplated under the Act and Rules; that the above amounts to arm-twisting this honourable court into granting costs that are discretionary in nature and an affront to the independence of judicial officers in their exercise of their judicial duties; that the court's award of Kshs. 30,000 can therefore not be deemed nor referred to as an error on the face of the record as anticipated under the Civil Procedure Act and the attendant Rules; that the interest of justice will be served by dismissing the Respondent’s application dated 7 November 2025 with costs to the Appellant assessed at Kshs. 30,000 for wasting this court's valuable time with a frivolous Application. 4.The application was canvassed by way of written submissions. 5.The Respondent/Applicant raised one issue for determination namely whether the application has merit. 6.It was submitted that the law relating to review of Judgments or decree is crystal clear, and unchanged. That section 80 of the Civil Procedure Act states 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; orb.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”Also Order 45 Rule 1 provides as follows:“Any person considering himself aggrieved— by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or 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.”Again, section 3 A of the Civil Procedure Act states:“Nothing in this Act shall limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”In Michael Muriuki Ngubuini versus East African Building Society Limited [2015] eKLR, the Court stated“Section 80 gives the power of review and Order 45 sets out the rules. The rules in my view restrict the grounds for review. In my view, the above rule lays down the jurisdiction and scope of review limiting it to the following grounds: (a) discovery of new and important matter or evidence which after due the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or; (b) on account of some mistake or error apparent on the face of the record, or (c) for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay.” 7.It was submitted that the legal provisions for review of Court Judgements or orders as found in Section 80 of the Civil Procedure Act and order 45 Civil Procedure Rules. That the grounds upon which a Court can review its Judgement under order 45 Civil Procedure Rules arei.Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when the decree was passed or order made; orii.Some mistake or error apparent on the face of the record; oriii.Any other sufficient reasonIn Nyamogo & Nyamogo v Kogo [2001.] EA 170 discussing what constitutes an error on the face of the record, the court rendered itself as follows:-“An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of un definitiveness inherent in its very nature and it must be determined judicially on the facts of each case. There is a 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 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 possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.”The Indian Supreme Court in Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal, Chinnappa Reddy, J., (SCC p. 390, para 3) 1 (1979) 4 SCC 389: AIR 1979 SC 1047 made a pertinent observation that is it has to be kept in view that an error apparent on the face of record must be such an error, which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. 8.It was submitted that the term "mistake or error apparent" by its very connotation signifies an error which is evident per se from the record of the case and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position.In National Bank of Kenya vs Ndungu Njau (1996) eKLR it was held that that an error must be self-evident.In this case, this Honourable Court alluded to there being a defence that raises triable issues. It is clear from the record that the Appellant never filed any defence, nor annexed a drat defence in the trial Court. This Court therefore committed a mistake on the face of record, thus arrived at its judgment. That this court stated “It is also noted that the Appellant’s defence raised triable issues which merited the same to be allowed for trial” 9.It was thus contended that this Honourable Court wrongfully set aside the Judgment on the basis that the Appellant had filed a defence which raised triable issues yet there was no such defence and that the Appellant has not alluded to any in its replying affidavit hereto. That the application should be allowed and costs awarded to the Respondent.The Appellant submitted that the Application is premised on Article 53 (1) (e) and (2) of the Constitution of Kenya, 2010; Sections 102, 103, 104, 108, 110, 11, 113 of the Children Act No. 29 of 2022; Regulation 4 of Children (Practice and Procedure Parental Responsibility) Regulations, 2002 and all enabling provisions of Law. The Application primarily seeks inter alia to review the judgment delivered on 26 September 2025. It was therefore contended that the provisions under which a review of this court’s Judgement are well grounded and precisely stated, it is unfathomable that the Respondent would seek to review this court’s judgement under statutory provisions that are not only misguided, but alien to the subject of review of judgements. It therefore stands that the instant application is fatally defective and unfounded for having been brought under unknown sections and rules of the law in this circumstance. That the same has not even been acknowledged, amended nor excused by the Respondent in his submissions in support of the application as to be considered a genuine mistake thereby rendering the Application fatally defective. 10.It was submitted that it is indubitable that the principles governing review of and/or setting aside orders is well anchored under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010. The said section 80 provides as follows:“ 80.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; orb)by a decree or order from which no appeal is allowed by this Act, May apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Further to the foregoing, Order 45 of the Civil Procedure Rules, 2010 provides as follows:“45 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; orb.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 review of judgement to the court which passed the decree or made the order without unreasonable delay.” 11.It was submitted that section 80 donates the power of review and Order 45 sets out the rules. That the rules restrict the grounds for review. It is contended that the above rule lays down the jurisdiction and scope of review limiting it to the following grounds;(a)discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;(b)on account of some mistake or error apparent on the face of the record; or(c)for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay. 12.It was submitted that the primary reasons advanced by the Respondent in support of the present application is that the Respondent only prayed that the Court grant him throw away costs calculated at 10% of the decretal sum in the event the court found merit with the Appellant’s application and that the Judgment by this Honourable Court only granted the Respondent KES. 30,000 as throw away costs stating that this was the Respondent’s wish as per their replying affidavit. That this was not right as the Respondent sought for Kshs 300,000 if the trial court decided to allow the Application by the Appellant. Hence, the pertinent question to resolve is whether or not the afore-stated reasons fall within the scope of Order 45 Rule 1 cited above and more particularly as enumerated in paragraph 10 (b) & (c) cited above. 13.That most recently, Justice Mativo (as he then was) in Stephen Gathua Kimani –vs- Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR explained in great detail what constitutes sufficient grounds to warrant a review when he cited with approval the Supreme Court of India in the case of Ajit Kumar Rath –vs- State of Orisa& Others where the Court aptly held thus:“The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.”The learned Judge also quoted the above dicta which was similarly restated in the case of Tokesi Mambili and others –vs- Simion Litsanga whereby the learned Justices of Appeal Kwach, Lakha and O’kubasu held as follows:“i.In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.ii.Where the application is based on sufficient reason it is for the Court to exercise its discretion.” 14.It is the Respondent’s contention that the Judgement and order setting aside the ex parte judgment was made on account of some error. It is trite that for a court to review its order or decree on the ground of an error on the face of the record, the error must be obvious. This was the holding in the case of National Bank of Kenya Ltd. vs. Njau (1995-98) 2 EA 249 which was cited with approval in the case of Kenya Farmers Association Ltd -vs- National Bank Of Kenya Ltd [2009] eKLR where Ouko J held as follows:“A review may be granted wherever 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.”Having observed the above, the learned Judge went further to state as follows:“Mulla on Code of Civil Procedure Vol.2 14th Edition P.2335 describes such error as one which “…..can be seen by one who runs and reads,”The error or mistake, if any, must be material. So that if it is an error or a mistake that will not change the order, then it is immaterial and there will be no review.” 15.It was submitted that an error apparent on the face of the record was defined in great detail in the case of Josphat Munke Ole Mpoe –vs- David Waiganjo Koinange & another [2015] eKLR in the following words:“Again, in the case of Michael Mungai -Vs- Ford Kenya Elections & Nominations Board & 2 Others (2013) eKLR pages 3 & 4 the five (5) judge bench held as follows while adopting the holding of Nyamogo and Nyamogo -vs- 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 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 grounds for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” 16.From the above authorities, it is quite apparent that where the court makes or adopts in its discretion, a view that the throw away costs of a particular amount is sufficient to compensate a party upon setting aside an exparte Judgement, that alone does not amount to an error apparent on the face of the record as this would require sufficient arguments to establish the value and challenge the court’s discretion. That therefore is a ground for the Respondent to proceed on appeal to challenge the court’s exercise of its discretion, and not a review. 17.It was further contended that even if the same was considered an error, the award of throw away costs would not change the order setting aside the exparte Judgement and directing the Appellant to comply with pretrial directions at the lower court as the matter has already been set down for hearing and the Respondent has already closed his case awaiting further hearing of the Appellant’s case. That the application is not only frivolous but an afterthought. 18.It was finally submitted that the Respondent’s Notice of Motion Application dated 7 November 2025 lacks merit and ought to be dismissed with costs of Kshs. 30,000 to the Appellant for the above stated reasons. 19.I have given due consideration to the Respondent’s application as well as the rival submissions. I find the issue for determination is whether the application has merit. 20.The principles governing review of and/or setting aside orders is well anchored under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, 2010. The said section 80 provides as follows:“ 80.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; orb)by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgement to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit. Further to the foregoing, Order 45 of the Civil Procedure Rules, 2010 provides as follows:“45 (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; orb.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 review of judgement to the court which passed the decree or made the order without unreasonable delay.” 21.It is clear that the foregoing provisions lay down the jurisdiction and scope of review limiting it to the following grounds;(a)discovery of new and important matter or evidence which after the exercise of due diligence, was not within the knowledge of the applicant or could not be produced by him at the time when the decree was passed or the order made or;(b)on account of some mistake or error apparent on the face of the record; or(c)for any other sufficient reason and whatever the ground there is a requirement that the application has to be made without unreasonable delay. 22.It is noted that the main reason advanced by the Respondent in support of the present application is that the Respondent in the trial court had only prayed that the Court grant him throw away costs calculated at 10% of the decretal sum in the event the court found merit with the Appellant’s application. It is the Respondent’s further contention that the Judgment by this Honourable Court only granted him Kshs 30,000 as throw away costs and justifying it that it was the Respondent’s wish as per his replying affidavit. The Respondent contends that this was not the true position as the Respondent had actually sought for Kshs 300,000 if the trial court decided to allow the application by the Appellant. Hence, the pertinent question for consideration is whether or not the afore-stated reasons fall within the scope of Order 45 Rule 1 of the Civil Procedure Rules. 23.It is the view of the Respondent that this court made an error when it granted the Appellant an opportunity to participate in the lower court case by paying throw away costs of Kshs 30, 000/ yet the Appellant had not even annexed a copy of a defence in its affidavit seeking to set aside the ex-parte judgement in the trial court. The Respondent further faults this court for failing to grant the Respondent the throw away costs of Kshs 300,000/ being 10% of the decretal sums granted by the trial court. The Respondent therefore feels that this court made an error and which is on the face of the record warranting a review of the judgement. 24.There have been several case law on the issue of review of judgements. Justice Mativo (as he then was) in Stephen Gathua Kimani –vs- Nancy Wanjira Waruingi t/a Providence Auctioneers [2016] eKLR explained in great detail what constitutes sufficient grounds to warrant a review when he cited with approval the Supreme Court of India in the case of Ajit Kumar Rath –vs- State of Orisa & Others where the Court aptly held thus:“The power can be exercised on the application of a person on 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 order was made. The power can also be exercised on account of some mistake or error apparent on the face of the record or for any other sufficient reason. A review cannot be claimed or asked for merely for a fresh hearing or arguments or correction of an erroneous view taken earlier, that is to say, the power of review can be exercised only for correction of a patent error of law or fact which stares in the face without any elaborate argument being needed for stabling it. It may be pointed out that the expression “any other sufficient reason” used in Order 47 Rule 1 means a reason sufficiently analogous to those specified in the rule.”The above dicta were similarly restated in the case of Tokesi Mambili and others –vs- Simion Litsanga whereby the learned Justices of Appeal Kwach, Lakha and O’kubasu held as follows:“i.In order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made. An applicant may have to show that there was a mistake or error apparent on the face of the record or for any other sufficient reason.ii.Where the application is based on sufficient reason it is for the Court to exercise its discretion.” 25.It is the Respondent’s contention that the Judgement and order setting aside the ex parte judgment was made on account of some error. It is trite that for a court to review its order or decree on the ground of an error on the face of the record, the error must be obvious. This was the holding in the case of National Bank of Kenya Ltd. vs. Njau (1995-98) 2 EA 249 which was cited with approval in the case of Kenya Farmers Association Ltd -vs- National Bank of Kenya Ltd [2009] eKLR where Ouko J held as follows:“A review may be granted wherever 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.”Having observed the above, the learned Judge went further to state as follows:“Mulla on Code of Civil Procedure Vol.2 14th Edition P.2335 describes such error as one which “…..can be seen by one who runs and reads,”The error or mistake, if any, must be material. So that if it is an error or a mistake that will not change the order, then it is immaterial and there will be no review.” 26.An error apparent on the face of the record was further defined in great detail in the case of Josphat Munke Ole Mpoe –vs- David Waiganjo Koinange & another [2015] eKLR in the following words:“Again, in the case of Michael Mungai -Vs- Ford Kenya Elections & Nominations Board & 2 Others (2013) eKLR pages 3 & 4 the five (5) judge bench held as follows while adopting the holding of Nyamogo and Nyamogo -vs- 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 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 grounds for a review although it may be for an appeal. This laid down principle of law is indeed applicable in the matter before us.” 27.As it is clear that the Respondent/Applicant maintains that this court went into error when it relied on the issue of the presence of a defence which raised triable issues when, in the view of the Respondent, the same did not exist, then I find that this is not a ground for review. The Respondent is clearly saying that this court went into error when it came up with the judgement and that going by the dicta in Nyamogo and Nyamogo Vs Kogo [2001] EA 174, the error or wrong view is therefore not a ground for review but for an appeal. Further, it is quite apparent that where the court makes or adopts in its discretion, a view that the throw away costs of a particular amount is sufficient to compensate a party upon setting aside an exparte Judgement, that alone does not amount to an error apparent on the face of the record as this would require sufficient arguments to establish the value and challenge the court’s discretion. That therefore is a ground for the Respondent to proceed on appeal to challenge the court’s exercise of its discretion, and not a review. Indeed, what the Respondent seeks is to have this court relook at its judgement afresh and come up with a different decision which is not tenable in the circumstances. I decline the suggestion proposed by the Respondent as it would amount to this court sitting on appeal on its own judgement. The error, if any, should be tackled in an appeal but not a review. 28.It is noted that upon the delivery of the judgement herein, the parties duly moved to the trial court and have since proceeded in the matter and it is now at the defence stage. I find the action of the Respondent in approaching this court while still prosecuting the lower court case in compliance with the judgement reeks of bad faith. This court made an order on the throw away costs just in the usual manner and that the same was not to enrich the Respondent at the expense of the Appellant even before the suit in the trial court could be determined on merit. I find that even if the same was considered an error, the award of throw away costs would not change the order setting aside the exparte Judgement and directing the Appellant to comply with pre-trial directions at the lower court as the matter has already been set down for hearing and the Respondent has already closed his case awaiting further hearing of the Appellant’s case. It is clear that the application is not only frivolous but an afterthought and is meant to forestall the final determination of the suit now pending before the trial court. 29.In view of the foregoing observations, it is my finding that the Respondent’s application dated 7/11/2025 lacks merit. The same is dismissed with costs to the Appellant. DATED AND DELIVERED AT SIAYA, THIS 19TH DAY OF JUNE 2026D.KEMEIJUDGEIn the presence of:M/s Ateka for Onyango…………………..for Respondent/ApplicantKuloba…………………………………..for Appellant/RespondentNaurine………………………………………..Court Assistant