https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11297

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COMMERCIAL SUIT NO. E011 OF 2023 TONY KINYUA MWANGI ……………….……...PLAINTIFF/RESPONDENT VERSUS TOWER SAVINGS AND CREDIT CO-OPERATIVE SOCIETY………….…………. DEFENDANT/APPLICANT RULING 1. The Defendant/Applicant filled a Notice of Motion Application dated 16th December 2025 seeking the following orders; a) Spent. b) That the orders issued in 3rd March 2025 directing that the costs of the suit be borne by the Defendant/ Applicant be reviewed for the costs of the suit to be borne by the Plaintiff/Respondent. 2. The Application was based on the grounds on its face and on the Supporting Affidavit of Chege Njoroge sworn on the same date. In it he indicated that the Defendant/Applicant filed a Notice of Preliminary Objection dated 26th September 2023 challenging the Plaintiff/ Respondent’s Notice of Motion Application dated 27th June 2023 on the basis that the High Court does not have jurisdiction to handle the suit pursuant to the provisions of Section 76 of the Co- operative Societies Act 2012; wherein jurisdiction is bestowed upon the Co-operative Tribunal established under Section 77 of the said HCCOMM. NO.E011 OF 2023 RULING - Page 1 of 3 Act and the High Court can only exercise Appellate jurisdiction under Section 81 of the Act. 3. On 6th February 2025 the Court delivered its Ruling upholding the Preliminary Objection and dismissed the Plaintiff/Respondent’s application. The Applicant states that the Court however erroneously awarded costs to the Plaintiff/Respondent which constitutes and error apparent on the face of the record as cost were granted to the unsuccessful party contrary to Section 27 of the Civil Procedure Act. 4. The Application was unopposed and the Defendant/Applicant in its submissions argued that Order 45 of the Civil Procedure Rules, 2010 is clear that a court can only review its orders if the following grounds exist:- a) There must be discovery of a new and important matter which after the exercise of due diligence, was not within the knowledge of the Applicant at the time the decree was passed or the order was made; or b) There was a mistake or error apparent on the face of the record; or c) There were other sufficient reasons; and, d) The application must have been made without undue delay. 5. The Defendant/Applicant argued that the unopposed Application herein is premised on an evident mistake or error apparent on the HCCOMM. NO.E011 OF 2023 RULING - Page 2 of 3 face of the record as outlined above. 6. I have considered the Application and it is evident that the Applicant was the successful party in the proceedings and that there was no intention to depart from the general principles that costs follow the event. The order awarding costs to the Respondent was thus inadvertent and constituted a slip within the meaning of Section 99 of the Civil Procedure Act, which provides; “Clerical or arithmetical mistakes on Judgments, Decree or Orders or errors arising therein from any accidental slip or omission, may at any time be corrected by the Court either of its own motion or the application of any of the parties.” 7. This Court, therefore, has the power to correct clerical or arithmetical mistakes in Judgments and decrees or orders. I consequently find the Application dated 16th December 2025 to be merited and hereby correct the orders issued on 3rd March 2025 to reading that the costs of the suit be borne by the Defendant/Applicant and they are hereby reviewed to read those costs of the suit to be borne by the Plaintiff/Respondent. 8. Orders accordingly. DATED, SIGNED, AND DELIVERED AT KIAMBU ON THIS 10TH DAY OF JUNE 2026. ………………………………………………………… BAHATI MWAMUYE MBS JUDGE HCCOMM. NO.E011 OF 2023 RULING - Page 3 of 3