https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12576

Charo v Mwaphatsa (Civil Appeal E153 of 2023) [2026] KEHC 12576 (KLR) (6 August 2026) (Judgment) Neutral citation: [2026] KEHC 12576 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E153 of 2023 J Ngaah, J August 6, 2026 Between Nixon Kazungu Charo Appellant and Mwanauba Omar Mwaphatsa Respondent (Being an appeal from the ruling of the Senior Resident Magistrate, Hon. Joe Omido, delivered on 22nd June 2023 in Kwale PMCC No. E037 of 2020) Judgment Introduction 1.This appeal arises from the ruling of Hon. Joe Omido (Senior Resident Magistrate) delivered on 22nd June 2023 in Kwale PMCC No. E037 of 2020, dismissing the Appellant's application for review of the judgment delivered on 2nd March 2022. 2.The Appellant was the plaintiff in the lower court. His claim arose from a road traffic accident which occurred on 19th August 2019 involving a motorcycle and a motor vehicle allegedly owned by the Respondent. 3.The trial court dismissed the suit after finding that the evidence adduced did not establish liability against the Respondent. Aggrieved by that decision, the Appellant sought review, alleging discovery of new and important evidence and an error apparent on the face of the record. The application for review was dismissed, giving rise to the present appeal. Grounds of Appeal 4.The memorandum of appeal raises eight grounds which, though variously framed, may conveniently be condensed into the following issues:a.whether the learned magistrate erred in declining to review the judgment of 2nd March 2022;b.whether the Appellant established grounds for review under Order 45 Rule 1 of the Civil Procedure Rules;c.whether the learned magistrate erred in finding that there was inordinate delay in seeking review; andd.whether the appeal has merit. Duty of the First Appellate Court 5.This being a first appeal, this Court is under a duty to reconsider and re-evaluate the material that was before the trial court and to arrive at its own conclusions, bearing in mind always that it neither saw nor heard the witnesses and giving due allowance for that fact. Whether the learned magistrate erred in declining the application for review 6.The power of review 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:a.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;b.an error apparent on the face of the record; orc.any other sufficient reason. 7.The Court of Appeal in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR held that:“A review may be granted whenever 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. It will not be a sufficient ground for review that another Judge could have taken a different view of the matter.” 8.Similarly, in Nyamogo & Nyamogo Advocates v Kogo [2001] EA 173, the Court stated:“An error apparent on the face of the record cannot be defined precisely or exhaustively. 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.” 9.The foregoing authorities establish that review is not intended to afford a litigant a second opportunity to re-argue his case, nor to invite the court to rehear and re-determine issues already concluded. 10.The principles governing review were comprehensively restated in Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya [2019] eKLR, where it was held that the review jurisdiction must be exercised sparingly and strictly within the confines prescribed by statute. Whether there was discovery of new and important evidence 11.The Appellant contends that, after judgment, he conducted a search and discovered that motor vehicle registration number KAW 529K was a rickshaw popularly referred to in this part of the world as a “tuk-tuk” registered in the name of one Veronica Kariuki, and not the Respondent. He argues that this constituted new and important evidence warranting review. 12.The question is whether that evidence satisfies the threshold prescribed by Order 45 Rule 1. 13.In Executive Committee Chelimo Plot Owners Welfare Group & 288 Others v Langat Joel & 4 Others [2018] eKLR, the Court held that for evidence to qualify as “new and important”, a party must show not only that it was unavailable at the time of trial, but also that it could not have been obtained earlier with the exercise of reasonable diligence. 14.Likewise, in Jameny Mudaki Asava v Brown Otengo Asava & Another [2015] eKLR, the Court held that evidence is not new merely because it was obtained after judgment; it must be evidence which could not, with due diligence, have been discovered and produced earlier. 15.From the record, the discrepancy between registration numbers KAN 529K and KAW 529K emerged in the course of the trial, through the testimony of the police officer. 16.Once that issue surfaced during the hearing, the Appellant had ample opportunity to seek an adjournment, to conduct a search at the registry, to summon additional witnesses, or to obtain and produce clarifying documentary evidence before the suit was determined. 17.In the circumstances, the post-judgment search relied upon by the Appellant cannot be said to constitute evidence which could not, with due diligence, have been discovered and produced earlier. It therefore falls short of the requirements of Order 45 Rule 1. Whether there was an error apparent on the face of the record 18.The Appellant further argues that the trial court erroneously dismissed the suit notwithstanding evidence pointing to motor vehicle registration number KAN 529K and its ownership by the Respondent. 19.With respect, that complaint goes to the merits of the judgment itself. In National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court emphasised that a review cannot be granted merely because a court has reached an erroneous conclusion of law or of fact; such complaints belong properly to the appellate process. The same position was adopted in Abasi Belinda v Frederick Kangwamu & Another [1963] EA 557, where it was held that a point which may be a good ground of appeal is not necessarily a good ground for review. 22.Whether the learned magistrate correctly evaluated the evidence touching on ownership, the registration number of the offending vehicle, and liability are matters that call for a re-evaluation of the evidence and of the legal reasoning of the trial court. Such matters are, by their very nature, proper grounds of appeal and not of review. I therefore agree with the trial court that no error apparent on the face of the record was established. Whether the absence of a replying affidavit entitled the appellant to review 24.The Appellant submitted that his application for review was uncontroverted, the Respondent having filed only grounds of opposition and no replying affidavit, and that the application ought, on that account, to have been allowed. 25.There is considerable authority for the proposition that grounds of opposition generally address points of law and do not controvert factual depositions made on oath. In Kennedy Otieno Odiyo & 12 Others v Kenya Electricity Generating Company Ltd [2010] eKLR, the Court held that grounds of opposition do not constitute evidence and cannot rebut factual averments contained in a supporting affidavit. 27.The Court of Appeal in Daniel Kibet Mutai & 9 Others v Attorney General [2019] eKLR similarly held that where affidavit evidence remains unchallenged, the facts deponed to therein may be taken to have been admitted. However, the fact that an application is unopposed does not, of itself, automatically entitle an applicant to the orders sought. 29.The Court must still be satisfied that the legal threshold for the relief sought has been met. As was observed in Kenya Commercial Bank Ltd v Suntra Investment Bank Ltd [2015] eKLR, a court is not obliged to grant orders merely because they are unopposed; the applicant must nonetheless establish a proper legal basis for the relief. Accordingly, even if the factual averments in support of the review application remained uncontroverted, the Appellant was still bound to satisfy the statutory requirements for review. In my view, he did not. Whether the delay was fatal 31.The learned magistrate also considered the question of delay. I note that the Appellant asserted that he became aware of the judgment on 25th May 2022 and filed the application for review on 17th June 2022. Although I am not, with respect, persuaded that the delay was inordinate, that finding alone would not have entitled the Appellant to review. 34.The Court of Appeal in Pancras T. Swai v Kenya Breweries Ltd [2014] eKLR held that even where an application is brought promptly, the applicant must still establish one of the recognised grounds for review. Since the Appellant failed to establish the discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason, his application was bound to fail regardless of the question of delay. Conclusion 36.The totality of the material on record and the applicable law lead this Court to the conclusion that the Appellant's grievance is directed at the merits of the judgment delivered on 2nd March 2022, and not at any matter amenable to review. The proper remedy against an alleged erroneous evaluation of the evidence is an appeal against that judgment, and not an application for its review. 38.Consequently, I find that the learned magistrate properly exercised his discretion in dismissing the application dated 17th June 2022. Accordingly, the appeal is hereby dismissed and the ruling of the Senior Resident Magistrate delivered on 22nd June 2023 is hereby upheld. The Respondent shall have the costs of the appeal. 39.If it is necessary, leave to appeal is granted to any party that would wish to appeal. It is so ordered. DATED, SIGNED AND PUBLISHED ON THE CTS ON 6 AUGUST 2026NGAAH JAIRUSJUDGE