https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8315

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **COMMERCIAL & TAX DIVISION** **CIVIL SUIT NO. 608 OF 2014** **MISTRY JADVA PARBAT &** **COMPANY LIMITED……………………………PLAINTIFF/DECREE HOLDER** **-VERSUS-** **GOLDEN JUBILEE LIMITED..................DEFENDANT/JUDGMENT DEBTOR** **-AND-** **DIAMOND TRUST BANK LIMITED........................................GARNISHEE** **RULING** 1. The Plaintiff filed the Notice of Motion dated 22 November 2025 under Sections 1A, 1B, 3A, 63(e) and 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules, and Articles 10, 25(c) and 50(1) of the Constitution seeking the following orders: a. Spent. b. This court be pleased to extend time to the Applicant to file the instant application for review and the same be deemed as filed within time. c. This Court be pleased to review the ruling delivered on 19 December 2024 and to set aside orders (ii)(c) and (d) of that ruling and in place thereof substitute the said orders with payment of interest between the period 17 November 2021 until payment in full by the Garnishee and a subsequent order allowing for payment by the Garnishee for the sum of Kshs.17,354,714.84 allegedly paid under the impugned consent declared null and void and of no legal consequence. d. That the costs of and incidental to this Application be provided for. 1. The application was premised on the contention that there were errors apparent on the face of the record. The Plaintiff argued that the ruling of 19 December 2024 effectively varied or set aside the judgment delivered by Ochieng J on 8 June 2016 and the Garnishee Order Absolute issued by Mabeya J on 23 November 2021, both of which awarded interest at 16% per annum until payment in full. It was contended that no appeal or review had been filed against either decision and that this Court, being of concurrent jurisdiction, could not sit on appeal over those orders. 2. The Plaintiff further contended that once the consent dated 17 December 2021 was declared null and void and expunged from the record, the parties reverted to the position obtaining under the valid Garnishee Order Absolute. It was argued that there was no evidence that the sum of Kshs.17,354,741.84 had ever been remitted to the Plaintiff and that requiring the Plaintiff to give credit for that amount would effectively validate an illegal consent entered into without its knowledge or authority. 3. The Plaintiff maintained that any recovery of the disputed funds should be pursued by the Garnishee and/or the Judgment Debtor against the persons who received them under the impugned consent. 4. The Plaintiff also challenged the finding that the delay between 17 November 2021 and 19 December 2024 was attributable to its former advocates, arguing that no evidence had been placed before the Court to justify suspending the accrual of interest during that period. 5. The Defendant filed Grounds of Opposition and a Replying Affidavit, both dated 9 February 2026. It was contended that the instant application is an abuse of the court process aimed at frustrating the taking of accounts to discharge the Defendant from obligations arising from the decree; that the Plaintiff is guilty of inordinate delay which has not been explained; and that the application improperly invites the Court to sit on appeal over its own decision when no error apparent on the face of the record has been demonstrated. 6. The Garnishee and Affected Party also filed a Replying Affidavit sworn on 9 February 2026 by Francis Kariuki, a Legal Officer of Diamond Trust Bank Kenya Limited. 7. The Garnishee contended that the application was inordinately delayed, having been filed almost one year after delivery of the impugned ruling, and that no satisfactory explanation for the delay had been offered. It was further argued that the application was misconceived, incompetent and an abuse of the court process as it sought to invite the Court to sit on appeal over its own decision under the guise of review proceedings. 8. The Garnishee maintained that the Plaintiff had failed to demonstrate any error apparent on the face of the record, discovery of new and important evidence, or any other sufficient reason warranting review under Order 45 of the Civil Procedure Rules. 9. The Garnishee acknowledged that judgment had been entered in favour of the Plaintiff on 8 June 2016 for Kshs.32,913,396.84 and that a Garnishee Order Absolute was subsequently issued on 23 November 2021 directing payment of Kshs.61,261,857.19 together with interest at 16% per annum. However, it argued that in determining the Plaintiff’s application to set aside the consent dated 17 December 2021, the Court was entitled to issue consequential orders necessary to facilitate satisfaction of the decree and to take into account the circumstances surrounding execution of the consent. 10. The Garnishee denied that the ruling of 19 December 2024 exempted it from liability for interest, asserting that the Court expressly directed payment of the decretal sum together with interest at 16% per annum from 1 January 2020, save only that the period between 17 November 2021 and 19 December 2024 would not count for purposes of interest computation because the consent had been in force during that period and Kshs.17,354,741.84 had already been paid. 11. The Garnishee further deponed that the disputed sum of Kshs.17,354,741.84 had in fact been remitted to the Plaintiff’s then advocates, Messrs A.B. Patel & Patel Advocates, pursuant to the consent. It was contended that the Plaintiff had previously acknowledged receipt of those funds by its advocates and, in its own application seeking to set aside the consent, had expressly sought payment of the decretal sum less any monies already paid to the Plaintiff or its advocates. 12. According to the Garnishee, any dispute regarding whether the Plaintiff ultimately received those funds was a matter between the Plaintiff and its former advocates and could not justify requiring the Garnishee to pay the amount a second time, which would amount to unjust enrichment. 13. The Garnishee further relied on averments previously made by the Plaintiff alleging that its former advocates had failed to respond to communications and had executed the consent without authority. It argued that those admissions demonstrated that the conduct of the Plaintiff’s former advocates contributed to the execution of the impugned consent and justified the Court’s finding that the delay was attributable to them. 14. The Garnishee maintained that the Plaintiff was merely dissatisfied with the Court’s conclusions and was attempting to relitigate issues already determined in the ruling of 19 December 2024. It therefore urged the Court to find that the proper remedy lay in an appeal rather than review and to dismiss the application with costs. **Analysis and Determination** 1. At the time of writing this ruling, none of the parties had filed written submissions despite the Court’s directions to do so. 2. This is an application seeking review of the ruling delivered on 19 December 2024. 3. The power of the Court to review its orders is provided under Section 80 of the Civil Procedure Act which states: “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.” 1. The complementary procedural provision is Order 45 Rule 1 of the Civil Procedure Rules which provides: “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.” 1. In the ruling dated 19 December 2024, the Court directed, inter alia: “b) The Garnishee is hereby directed to pay to the decree-holder, within forty-five (45) days from the date hereof, a sum of Kshs.61,261,857.19 together with interest thereon at 16 per cent per annum from 1 January 2020 to date, failure to which, an order of execution shall automatically issue. c) However, since the delay was partly attributed to the decree-holder’s former advocates, I direct that the period between 17 November 2021, when the consent was executed, and the date of this Ruling (19 December 2024) shall not count for purposes of computing interest. d) Credit shall be given to the amount of Kshs.17,354,741.84 already paid under the consent and the same shall be taken into account in computing the interest.” 1. The Plaintiff contends that the foregoing orders had the effect of varying the judgment of Ochieng J delivered on 8 June 2016 and the Garnishee Order Absolute issued by Mabeya J on 23 November 2021. In particular, it argues that the Court impermissibly interfered with the award of interest at 16% per annum until payment in full. 2. I have considered the application, the affidavits on record and the applicable law. In my view, the impugned orders were consequential orders issued following the setting aside of the consent dated 17 December 2021 and were intended to facilitate settlement of the decree in the circumstances of the case. They did not set aside or vary the principal judgment or the Garnishee Order Absolute. 3. The grievance raised by the Plaintiff concerns the correctness of the Court’s findings regarding computation of interest and treatment of the sums already paid under the impugned consent. Those are matters going to the merits of the decision rather than errors apparent on the face of the record. 4. In the case of *Kithoi v Kioko* [1982] KLR 177, the Court of Appeal held: 5. “It is important to bear in mind that Order 44 Rule 1 (now Order 45 Rule 1) of the Civil Procedure Rules sets out the purview of the review jurisdiction. A point outside that purview is not a ground for review. A point which may be a good ground of appeal like an erroneous view of law or evidence is also not a ground for review. That a court reached an erroneous conclusion because it proceeded on an incorrect exposition of the law or misconstrued a statute or other provision of law is no ground for review. All these are grounds of appeal.” 6. Likewise, in **Nyamogo & Nyamogo v Kogo [2001] EA 170,** the Court stated: *“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 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.”* 1. I concur with the principles set out in the foregoing authorities. The Plaintiff has not demonstrated any error apparent on the face of the record within the meaning of Order 45 Rule 1 of the Civil Procedure Rules. 2. Further, the Plaintiff has not demonstrated discovery of new and important evidence, nor established any other sufficient reason warranting review. 3. I also note that the Court directed that credit be given for the amount of Kshs.17,354,741.84 already paid under the consent. In my view, the setting aside of the consent did not extinguish the fact of payment already made pursuant thereto. The Court was entitled to take such payment into account in order to avoid double recovery and unjust enrichment. 4. Similarly, the Plaintiff’s challenge to the Court’s findings regarding suspension of interest during the period between 17 November 2021 and 19 December 2024 concerns the propriety of the Court’s exercise of discretion and evaluation of the circumstances surrounding the impugned consent. Such complaints properly fall within the province of an appeal and not review. 5. In any event, the application was not brought without unreasonable delay as required under Order 45 Rule 1 of the Civil Procedure Rules, and no satisfactory explanation has been offered for the delay. 6. Accordingly, I find no merit in the Notice of Motion dated 22 November 2025, and the same is hereby dismissed with no order as to costs. 7. It is so ordered. **DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 11TH DAY OF JUNE 2026** **** **HON. MR. JUSTICE MOSES ADO *Judge of the High Court*** **In the Presence of:** *Moses C/A* *Janmohammed SC & Paul Ogunde………………for the Defendant* *Mangich h/b for Oraro SC………………for the Garnishee & Affected Party* *for the Decree Holder/Applicant* *Kinyua………………….for the Decree Holder*