https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12612

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E351 OF 2024** **THOMAS MOMANYI BURUCHARA........APPELLANT/1ST RESPONDENT** **VERSUS** **MUUSAN TRADING LIMITED................................................APPLICANT** **FANCY ISUNGWA KASINA.......................................2ND RESPONDENT** **RULING** 1. This ruling is in respect to the Notice of Motion dated 21st March 2025 wherein the Applicant principally seeks review, variation and setting aside of part of the judgment delivered by Muteti J. on 24th February 2025 to the extent that it was found jointly liable with the 2nd Respondent for 50% of the decretal sum of Kshs.300,000/= and prays that liability be borne solely by the 2nd Respondent. 2. Pending determination of the application, the Applicant also sought stay of execution. 3. The Application is brought under Section 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules and Article 159(2) of the Constitution. 4. The application is supported by the affidavit of **Ahmad Usman**, a director of the Applicant company. It is opposed by both the Appellant and the 2nd Respondent through their respective replying affidavits and written submissions. **The Applicant's Case** 1. The Applicant submits that there has been discovery of new and important evidence which was unavailable when judgment was delivered. It contends that it was neither the registered nor beneficial owner of motor vehicle registration number KDE 197K on the date of the accident and that it had sold the vehicle to the 2nd Respondent on 22nd December 2021. 2. It relies on the offer letter, release letter, logbook and a National Transport and Safety Authority (NTSA) verification letter dated 24th February 2025 confirming that ownership changed on 9th February 2022, before the accident of 5th May 2022. According to the Applicant, the Appellant's claim was founded on an erroneous NTSA search conducted on 30th May 2022 and had the Court been aware of the true ownership position, it would have absolved the Applicant from liability. 3. The Applicant submitted that the application satisfies the requirements of Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules (CPR), arguing that there exists discovery of new evidence and an error apparent on the face of the record. Reliance was placed on the statutory provisions governing review and the Applicant urged the Court to exercise its wide discretion in the interests of justice. **The Appellant's Response** 1. The Appellant opposes the application and submits that it is an afterthought intended solely to delay enjoyment of the fruits of the judgment. He argues that the issue of ownership was canvassed during the appeal and that the Applicant was served in the primary suit but failed to enter appearance or file a defence. It is further submitted that the Applicant participated in the appeal and cannot now seek to reopen the case by introducing evidence which could and ought to have been produced before judgment. 2. The Appellant contends that the alleged NTSA documents do not constitute new evidence within the meaning of Order 45 Rule 1 of the Civil Procedure Rules (CPR) and relies on ***Ajit Kumar Rath vs. State of Orissa & Others* (1999) 9 SCC 596**, where the Supreme Court of India held that review is only available for correction of patent errors and not for rehearing the case on merits. The Appellant therefore urges the Court to dismiss the application with costs. **The 2nd Respondent's Response** 1. The 2nd Respondent similarly opposes the application. It submits that the Applicant deliberately failed to defend the suit in the subordinate court despite being afforded an opportunity to do so and cannot now seek to introduce evidence through what amounts to the "back door." It argues that the alleged evidence regarding ownership was always within the Applicant's knowledge and therefore cannot qualify as newly discovered evidence. 2. Reference was made to ***Pancras T. Swai vs. Kenya Breweries Limited* [2014] eKLR**, where the Court held that review is unavailable where the evidence sought to be introduced was within the applicant's knowledge or could have been obtained with due diligence. Reliance is also placed on ***Francis Origo & Another vs. Jacob Kumali Mungala* [2005] eKLR**, where the Court of Appeal emphasized that new evidence must not only be relevant but must also be evidence which could not have been obtained with due diligence. 3. The 2nd Respondent further cites ***National Bank of Kenya Ltd vs. Ndungu Njau* [1997] eKLR** and ***Murray vs. Kariu t/a Kimani Kariu & Company Advocates* [2026] KEHC 3496 (KLR)** for the proposition that review cannot be used as an avenue to re-argue or re-litigate matters already determined. **Issues for Determination** 1. Having considered the pleadings, affidavits and rival submissions, I find that the sole issue falling for determination is whether the Applicant has met the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. **Analysis and Determination** 1. The jurisdiction of this Court to review its own judgment is donated by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. An applicant seeking review must demonstrate discovery of new and important matter or evidence which, despite exercise of due diligence, was not within its knowledge or could not be produced at the time judgment was delivered; or establish an error apparent on the face of the record; or show any other sufficient reason. 2. The principles governing review are now settled. In ***National Bank of Kenya Ltd vs. Ndungu Njau* [1997] eKLR**, the Court of Appeal held that review is not available merely because another Judge may have reached a different conclusion or because a party considers the judgment erroneous. 3. Similarly, in ***Francis Origo & Another vs. Jacob Kumali Mungala* [2005] eKLR**, the Court held that evidence relied upon for review must not only be relevant but must also be evidence that could not have been obtained with due diligence at the time of trial. 4. The Applicant's principal complaint is that it was not the owner of motor vehicle KDE 197K at the material time and that the Court should therefore revisit its findings on liability. The documents relied upon comprise an offer letter, release letter, logbook and an NTSA verification letter issued after judgment. However, the underlying facts regarding sale of the motor vehicle and change of ownership were matters peculiarly within the Applicant's knowledge. Indeed, if the Applicant had sold the motor vehicle in December 2021 and ownership changed in February 2022 as alleged, those facts were always available to it. 5. The Applicant has not explained why such evidence was not placed before either the subordinate court or this Court during the hearing of the appeal. Instead, the record reveals that the Applicant failed to enter appearance and defend the suit in the lower court, thereby denying itself the opportunity to place the material before the trial court. Review is not intended to afford a litigant a second opportunity to present evidence which, through lack of diligence, it omitted to produce earlier. 6. I also do not find any error apparent on the face of the record. The Applicant is essentially inviting this Court to revisit its evaluation of evidence and its findings on ownership and liability. That invitation falls outside the scope of review. As was stated in ***National Bank of Kenya Ltd vs. Ndungu Njau* (supra)**, an erroneous view of the evidence or law, if any, is a matter for appeal and not review. 7. Having carefully considered the entire record, I am not persuaded that the Applicant has satisfied any of the statutory grounds for review. 8. The upshot is that the Notice of Motion dated **21st March 2025** is devoid of merit and I hereby dismiss it with costs to the Appellant and the 2nd Respondent. It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY THIS 30TH DAY OF JULY 2026** **HON W A OKWANY** **JUDGE**