https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12214

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E038 OF 2025** **TABITHA MUNANIE MUTWA.……………………..1ST APPELLANT/APPLICANT** **PRISCILLA LYNET MUTWA…………………..……2ND APPELLANT/APPLICANT** **MONAN VENTURES LMITED……………………….3RD APPELLANT/APPLICANT** **VERSUS** **LAWRENCE NICHOLAS MUTEMBEI……………………….…...1ST RESPONDENT** **HELLEN MAKASI MUTHENGI…………..…………………..……2ND RESPONDENT** **PLANBEE CONTRACTORS &** **GENERAL SUPPLIERS LIMITED……..………………………….3RD RESPONDENT** **RULING** **INTRODUCTION** 1. By Notice of Motion application dated 5th May 2026, the Applicant seeks orders of stay of execution against the judgment and decree issued in Thika Small Claims Court Case No. E1164 of 2023 pending the hearing and determination of the Third-Party proceedings filed by the Applicants in Milimani Commercial Suit No. E3391 of 2023. 1. Further, Applicants pray that the decretal sum deposited as security currently being held by the Court, remain so pending the outcome of the Third-party proceedings. 2. Additionally, the Court do review, vacate or vary the judgment delivered on 30th April 2026 for sufficient cause and direct that the matter be retried by the Small Claims Court. 3. In opposition to the application, the 1st respondent filed a Replying Affidavit dated 5th May 2026. **Applicants’ Case** 1. The Applicants depose that their Appeal was dismissed by the instant court on 30th April 2026 and as a consequence, the 1st Respondent’s advocates have moved to execute the decree by seeking the release of the security deposit of **Kshs. 1,286,625/-**. 2. The Applicant disclosed that they have filed Third-party proceedings against the 1st Respondent in Milimani Commercial Suit No. E3391/2023 seeking indemnity and contribution as the ultimate party liable for the sums claimed in the lower court suit. The Applicants aver that the Third-party notice is arguable and has a good chance of success. 1. The Applicants swore that the 1st Respondent’s means are unknown to them and based on his claim of having advanced the cash from his personal resources, there is a real risk that he may not be able to refund the sum if the Third-party proceedings succeed. 2. The Applicants argue that there is sufficient cause for the review of this Court’s judgment of 30th April 2026 including the fact that the Court in its judgment did not give any detailed reasons guided by caselaw in rejecting the Applicants arguments on the right to fair hearing; that the Court did not address its mind to the fact that Article 159 of the Constitution prefers substantive justice over procedural technicalities; that the Court failed to find that even an appeal on points of law can still investigate further matters that the Trial Court ought to have considered if in the end, the judgment from the Trial Court is perverse to justice; the Court failed to interrogate the trial court’s proceedings which would showed that they never evidenced the loan agreement and chain of transfer of funds which the said Trial Court relied on in making its finding; the Court should not have affirmed the Small Claims Court’s judgment that held them jointly and severally liable for the debt owed by the 2nd respondent to the 1st Respondent despite there being no evidence of any contract, offer, acceptance or consideration passing between the 1st respondent and them; this Court failed to appreciate that procedural lapses ought not to defeat substantive justice under Article 159(2)(d) of the Constitution and that the Trial court ought to have considered the already filed submissions; the Court ought to have appreciated that errors of Counsel ought not to be visited upon the litigant; the Court failed to consider the claim in the lower court forms part of the larger dispute in Milimani CMCC No. E3391 of 2023 and the court ought to have not awarded costs to the 1st Respondent. **The 1st Respondent’s Case** 1. The 1st Respondent deposes that the Applicants served the instant Application on 28th May 2026 and failed to serve the Application within 5 days as directed by the Court thus he prays that the stay orders be vacated forthwith and the deposited amount be released to him. The 1st Respondent avers that the instant Court rendered its judgment on 30th April 2026 hence is now *functus officio*. Further, that the instant Court has no original jurisdiction to interfere with the lower court matter that is not subject of this Appeal. 2. The 1st Respondent swore that he has never been served personally with the said Third-party proceedings in respect of Milimani CMCC No. E3391 of 2023. Further the 1st Respondent countered that the purported Third-party notice is incompetent and does not lie because no leave to lodge the same was granted by the trial court in CMCC No. E3391 of 2023. 3. Additionally, the 1st Respondent deponed that the said case is between Planbee Contractors Ltd vs Hellen Makasi Muthengi vs Mohan Ventures Ltd & Tabitha Munanie Mutwa and not him. He has no interest, connection or claim in as far as the subject matter of their dispute is concerned, which is sharing of profits. Whereas the claim in the Small Claims Court was for hiring of his lorry. 4. The 1st Respondent contends that the instant Application has been brought after unreasonable delay as it ought to have been presented in the Small Claims Court and not after this Court has delivered its judgment on Appeal. 5. Parties disposed of the application by way of written submissions. **The Applicants’ Submissions** 1. The Applicants relied on the cases of **Raila Odinga & 2 others vs Independent Electoral & Boundaries Commission & 3 Others [2013] eKLR**; **Alex Mwazighe Mwafusi vs Republic [2020] KEHC 1115 (KLR)** and **Midland Tyre & Retread Ltd & Another vs Prime Bank KEHC 4753 (KLR)** and submitted that review orders constitute an exception to the *functus officio* doctrine. Further, the application seeks stay of execution pending the determination of Third-party proceedings and the instant court has inherent jurisdiction under **Sections 1A, 1B, 3 and 3A of the Civil Procedure** **Act** to make such orders as may be necessary for the ends of justice. 2. On the issue of stay, the Applicants referred to the case of **Kenya Breweries Ltd vs Godfrey Odoyo [2010] eKLR** and submitted that the purpose of stay is to prevent the appeal or related proceedings from being rendered nugatory. The Applicants submitted that the judgment was delivered on 30th April 2026 and the present Application was filed on 7th May 2026 which is six days after the delivery of the judgment. 3. On the issue of substantial loss, the Applicants relied on **Aswa Developers & Contractors Limited Compact vs Freight Systems Limited [2020] KEHC 2555 (KLR**), for the submission that if the decretal sum of Kshs. 1,286,625/- is released to the 1st Respondent, the same will be dissipated and they will be unable to recover the sum if they succeed in the Third-party proceedings. Further, the Applicants have deposed that the 1st Respondent’s means are unknown and that there is a real risk he may not be able to refund the sum if the Third-party proceedings succeed. 4. The Applicants submitted that the Third-party proceedings in Milimani Commercial Suit No. E3391 of 2023 directly concern the same transaction (the KERRA tender) and the same parties with the 1st Respondent being the intended Third-party in the said proceedings. In the event they are successful in those proceedings, the 1st Respondent will be declared liable to indemnify them for any sums they are compelled to pay to him. Thus, allowing the execution proceedings to proceed would render the Third-party proceedings nugatory. 5. The Applicants argued that pursuant to **Order 1 Rule 15 of the Civil Procedure Rules**, the issue of leave to initiate third party proceedings is a matter for the Trial Court in CMCC No. E3391 of 2023 and not the instant court. Further, the 1st Respondent is a necessary party in the said proceedings as the Small Claims Court found them liable to the 1st respondent for Kshs. 1 million and the suit in Milimani concerns the same KERRA tender and the same financial arraignments. 1. The Applicants relied on **Order 45 Rule 1 of the Civil Procedure Rules** and the case of **GKM vs MNK (Originating Summons 1 of 2018) [2024] KEHC 54 (KLR)** and submitted that they have established sufficient reason to warrant a review based on errors apparent on the face of the record such as failure to consider their pleadings and evidence; failure to appreciate their compliance with the Trial court’s directions and failure to apply the principle that errors of counsel should not be visited upon litigants. **The 1st Respondent’s Submissions** 1. The 1st Respondent argued that the instant court on 30th April 2026 dismissed the appeal on merit and ordered the decretal amount be released forthwith. Therefore, the court became *functus officio* and it has no jurisdiction to sit on its own appeal. It was the 1st Respondent’s submission that the Court ought to down its tools. Reliance was placed in the cases of **Owners of Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd (1989) eKLR** and **Sir Ali Salim vs Sharrif Mohammed Sharray (1938) KLR**. **ANALYSIS AND DETERMINATION** 1. The main issues for determination are: - 2. Whether the court is *functus officio* and therefore lacks jurisdiction to entertain the application. If in the negative, 3. Whether the application for stay of execution is properly before the court. 4. Whether the applicants are entitled to the orders of review. **Whether the court is *functus officio* and therefore lacks jurisdiction to entertain the application.** 1. The doctrine of *functus officio* was discussed by the Supreme Court in **Odinga vs Independent Electoral & Boundaries Commission & 3 Others [2013] KESC 8(KLR)** as follows:- **We, therefore have to consider the concept of *functus officio* as understood in law. Daniel Malan Pretorius in “The Origins of the functus officio Doctrine, with Specific Reference to its Application in Administrative Law” (2005) 122 SALJ 832, has thus explicated this concept:** **The *functus officio* doctrine is one of the mechanisms by means of which the law gives expression to the principle of finality. According to this doctrine, a person who is vested with adjudicative or decision making powers, may as a general rule, exercise those powers only once in relation to the same matter…The principle is that once such a decision has been given, it is (subject to any right of appeal to a superior body or functionary) final and conclusive. Such a decision cannot be revoked or varied by the decision maker.** 1. From the record, this Court heard and determined the Appeal and rendered its judgment on 30th April 2026 dismissing the same with costs to the 1st Respondent. The applicants thereafter filed the instant application on 5th May 2026 seeking stay of execution of the impugned judgment pending the hearing and determination of the Third-party proceedings in Chief Magistrate’s Court at Milimani Civil Case Number E3391 of 2023. Under Order 42 Rule 6 of the Civil Procedure Rules, this Court has jurisdiction to issue preservatory orders to conserve the substratum of the pending appeal so that if successful it is not rendered nugatory. There is no such Appeal before it at the moment as the Third-Party proceedings in question is collateral matter that is ongoing before another lower Court. It cannot attract the exercise of stay jurisdiction by this Court as there no appeal lodged against it before this Court. The appeal has already been determined in respect of the decision of the Small Claims Court in Thika vide SCCCOMM No. E1164 of 2023. Milimani CMCC No. E3391 is not subject an appeal before this Court. This Court cannot be called upon to grant an order of stay of its own decision on already concluded appeal so as to await the outcome of some other proceedings in the lower court on a matter that matter is not before it by way of appeal. In my view, the present Application for stay execution pending the conclusion of the proceedings in Milimani CMCC No. E3391 of 2023 is totally misconceived and must fail. 1. That leaves the question of whether the Applicant has demonstrated sufficient grounds for the review of the judgment rendered on 30th April 2026 which would be the next issue. **Whether the applicants are entitled to the orders of review**. 1. The principles governing review are set out under **Order 45 of the Civil Procedure Rules** as follows: - **Rule 1 (1)** **Any person considering himself aggrieved: -** 1. **by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or** 2. **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. It then follows that Order 45 provides for three circumstances under which an order for review can be made. The applicant must demonstrate to the court that there has been 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. Secondly, the applicant must demonstrate to the court that there has some mistake or error apparent on the face of the record. The third ground for review is worded broadly; an application for review can be made for any other sufficient reason. 2. The Applicants submit that there Application for review is predicated on the ground of ‘any other sufficient reason’. The phrase ‘any other sufficient reason’ was illuminated in the case of **Republic vs Cabinet Secretary for Interior and Co-ordination of National Government *ex* *parte* Abullahi Said [2019] eKLR:-** **A court can review a judgment for any other sufficient reason. In the case of Sadar Mohammed vs Charan Singh & Another {1963} EA 557 it was held that any other sufficient reason for the purposes of review refers to grounds analogous to the other two (for example error on the face of the record and discovery of new matter.) Mulla in the Code of Civil Procedure (writing on Order 47 Rule 1 of the Civil Procedure Code of India), the equivalent of our Order 45 Rule 1, states that the expression, ‘any other sufficient reason’ means a reason sufficiently analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent error or an attempt not based on any ground set out…..would amount to an abuse of the liberty given to the tribunal under the Act to review its judgment.** I also find useful guidance in **Tokesi Mombili & Others vs Simion Litsanga [2004] eKLR** where the Court of Appeal held as follows: - **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.** **Where the application is based on sufficient reason it is for the court to exercise its discretion.** 1. ‘**Sufficient cause’** is not statutorily defined but in my considered view, it must mean a reason that is justified in the circumstances and sufficient for the Court to reexamine its own decision to prevent a substantial miscarriage of justice. 2. It should not be taken as an opportunity to reagitate and reargue questions that have already been addressed and decided or show that the Judge was wrong on the law or facts as those matters are for the Appeal. 3. In the Supreme Court of India case- **Vinod Kumar v State of U.P & 2 Others (Special Appeal No. 1083 of 2019)** the Court held thus: **“Review proceedings are not by way of appeal and have to be strictly confined to order 47 Rule 1 of the CPC. In review jurisdiction, mere disagreement with the view of the judgment cannot be a ground for invoking the same. As long as the point is already dealt with, and answered, parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under review jurisdiction.”** 1. Do the Third-party proceedings constitute a ground for review? They don’t, it is neither an error apparent on the face of the record, nor a discovery of a new matter of evidence as the case was filed in the year 2023 hence the facts upon which it is based was within the Applicants’ knowledge and should have been raised in the Small Claims Court during the hearing. 2. The applicants have further grounded their application on the issues of failure to consider their pleadings and evidence; failure to appreciate their compliance with the trial court’s directions and failure to apply the principle that errors of counsel should not be visited upon litigants. The Applicant is simply trying to reagitate his case by trying to demonstrate the Judge erred by overlooking some facts and not applying established legal principles, this is thus not a review but an appeal in disguise, simply asking the Court to sit on its own appeal by conducting detailed examination and evaluation of facts. 1. It is the considered view of this Court that the applicants have not met the threshold for review. 2. The upshot is that the Application dated 5th May 2026 lacks merit and is hereby dismissed. 3. The interim orders granted on 13th May 2026 are hereby discharged and the 1st Respondent is at liberty to continue with the process of the release of the decretal sum. 4. Costs of this Application to the 1st Respondent. ***DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 30TH DAY OF JULY, 2026.*** **………………………………………….** **L N MUGAMBI** **JUDGE**