Njimu v Jaswant Singh & Brothers Ltd & 2 others (Civil Appeal E563 of 2021) [2026] KEHC 8494 (KLR) (Civ) (22 May 2026) (Ruling)

Njimu v Jaswant Singh & Brothers Ltd & 2 others (Civil Appeal E563 of 2021) [2026] KEHC 8494 (KLR) (Civ) (22 May 2026) (Ruling) Neutral citation: [2026] KEHC 8494 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E563 of 2021 AC Mrima, J May 22, 2026 Between Jane Wangui Njimu Appellant and Jaswant Singh & Brothers Limited 1st Respondent Elegant Designers and Printers Limited 2nd Respondent Henry Bett 3rd Respondent Ruling Background: 1.In its judgment of 27th March 2025, this Court found the 2nd Respondent herein as the lawful owner of the suit property, known as House No. 947 Jambo Estate, Nairobi/Block 72/947. Consequently, the Court ordered Jane Wangui Njimu, the Appellant herein, to give vacant possession of the premises and to pay Elegant Designers and Printers Limited, the 2nd Respondent herein, the sum of Kshs. 2,190,000/- as mesne profits, computed at a monthly rate of Kshs. 30,000/- from May 2019 to April 2025. 2.The Applicant then filed an application by way of a Notice of Motion dated 17th July 2025 seeking review of the decision. The application was opposed by the 2nd and 3rd Respondents as the 1st Respondent did not take part it its hearing. Parties filed written submissions to the application. The Application: 3.The application was brought pursuant to Order 45 Rule 1 and Order 51 Rule 1 of the Civil Procedure Rules, and the Applicant sought the following Orders: -i.Spent.ii.Spent.iii.Spent.iv.This Honourable Court be pleased to review, vary, and/or set aside part of its judgment issued on 27 March, 2025 directing that the Appellant owes the 1st and 2nd Respondents the sum of Kshs. 2,190,000/- being mense profit from May 2019.v.Costs of this Application be in the cause. 4.In her Supporting Affidavit, Jane Wangui Njimu deposed that the Court proceeded on a wrong assumption of fact that she was in actual occupation of the suit property during the pendency of the suit and the appeal. It was her case that she vacated the property on 18th October 2019 after being served with a notice to vacate. To that end, she referred to police and trial Court proceedings as evidence of her eviction. She further deposed that she only became aware of the judgment in June 2025 because she had lost contact with her previous Advocates, which explained the delay in filing the application. The Submissions: 5.In further support of her case, the Applicant filed submissions and supplementary submissions dated 28th August 2025 and 21st October 2025 respectively. She maintained that there is an error apparent on the face of the record. She submitted that mesne profits are damages for trespass and can only be claimed for the period a party is in wrongful possession. She asserted that since she vacated the property in October 2019, the award of profits up to April 2025 is baseless. In support of the definition of an error apparent, the Applicant relied on the case of Nyamogo and Nyamogo Advocates -vs- Kogo [2001] 1 EA 173, where the Court held that such an error cannot be defined exhaustively and must be determined on the facts of each case. 6.Regarding the threshold for review, the Applicant cited Kithoi -vs- Kioko (1982) KLR 177, emphasizing that an application for review must be based on the discovery of new evidence, a mistake, or an error on the face of the record. 7.On the requirement to prove mesne profits, she drew support from the authority in Peter Mwangi Mbuthia & Another -vs- Samow Edin Osman (2014) eKLR, where the Court of Appeal set aside an award of mesne profits because the claimant failed to provide material demonstrating how the amount was arrived at. She also referred to the case of Provincial Insurance Company of East Africa Limited -vs- Modekai Mwanga Nandwa, Civil Appeal No. 179 of 1995, to stress that claims for loss must be ascertainable and quantifiable. 8.In addressing the issue of delay, the Applicant called to her aid the decision in Geoffrey Muriungi & Another -vs- John Rukunga M’Imonyo (2016) eKLR. It was her position that the four-month period taken to file the application did not amount to inordinate delay given that she only discovered the judgment in July 2025. 9.The Applicant prayed that the application be accordingly allowed. The 2nd & 3rd Respondents’ case: 10.The 2nd and 3rd Respondents opposed the application via Grounds of Opposition dated 4th August 2025. From the outset, they claimed that the application was filed after an inordinate and unexplained delay of over four months. The foregoing notwithstanding, they asserted that the application disclosed no grounds for review as there is no apparent error on the record, no new evidence, and no sufficient reason demonstrated. It was their position that the grounds raised are better suited for an appeal than a review, as the judgment was based on the judge’s reasoning of facts and evidence. 11.They claimed that the Applicant enjoyed interim injunction orders and remained in the house throughout the pendency of the case and her allegation of eviction in 2019 is an attempt to fill gaps in evidence post-judgment. The Submissions: 12.In their joint written submissions dated 4th August 2025, the Respondents reiterated that for a review to be granted under Order 45 Rule 1 of the Civil Procedure Rules, the Aplicant must show discovery of new evidence, an error apparent on the face of the record, or other sufficient reasons. They submitted that the issue of mesne profits was exhaustively discussed by the Court at paragraphs 20-26 of the judgment, and thus the assessment cannot be termed an error for purposes of review. 13.They argued that the Applicant failed to tender any evidence during the trial that she left the house in 2019. They maintained that the delay of four months is unreasonable and that the excuse of losing contact with an advocate is not plausible. 14.The Respondents prayed that the application be dismissed with costs. Analysis and Determination: 15.Having considered the pleadings and submissions, the sole issue for determination is whether the application meets the threshold for review. The power of review in the High Court is anchored under Section 80 of the Civil Procedure Act Cap.21 and Order 45 of the Civil Procedure Rules, 2010. Section 80 of the Act provides as follows: -80.Any person who considers himself aggrieved-(a)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. 16.Further, Order 45 of the Civil Procedure Rules provides as follows: - 45.1(1) Any person considering himself aggrieved- (a)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 allowedAnd 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 reasons, desires to obtain a review of the decree or order may apply for a review of judgment to the court which pass the decree or made the order without unreasonable delay. 17.Courts have severally rendered on this subject such that the applicable principles are well settled. For instance, the Supreme Court in Parliamentary Service Commission V Martin Nyaga Wambora & Others [2018] eKLR, quoted with approval the findings of the East Africa Court of Appeal in Mbogo and Another v Shah [1968] EA, on the issue of review as follows: -(31)Consequently, drawing from the case law above, particularly Mbogo and Another v Shah, we lay down the following as guiding principles for application(s) for review of a decision of the Court made in exercise of discretion as follows: -i.A review of exercise of discretion is not as a matter of course to be undertaken in all decisions taken by a limited bench of this Court.ii.Review of exercise of discretion is not a right; but an equitable remedy which calls for a basis to be laid by the applicant to the satisfaction of the Court.iii.An application for review of exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application.iv.In an application for review of exercise of discretion, the applicant has to demonstrate, to the satisfaction of the Court, how the Court erred in the exercise of its discretion or exercised it whimsically.v.During such review application, in focus is the decision of the Court and not the merit of the substantive motion subject of the decision under review.vi.The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion and:a.as a result, a wrong decision was arrived at; orb.it is manifest from the decision as a whole that the judge has been clearly wrong and as a result, there has been an apparent injustice. 18.Additionally, the Court of Appeal in National Bank of Kenya V Ndungu Njau (Civil Appeal 2111 of 1996) held thus: -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 sufficient ground for review that another Judge could have taken a different view of the matter nor can it be a ground for review that the court proceeds on an incorrect expansion of the law. 19.While analyzing the import of Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, the High Court in Republic v Advocates Disciplinary Tribunal ex parte Apollo Mboya (2019) eKLR crystallized the principles for consideration in reviewing its own decisions as follows: -i.A Court can review its decision on either of the grounds enumerated in Order 45 Rule 1 and not otherwise.ii.The expression "any other sufficient reason" appearing in Order 45 Rule 1 has to be interpreted in the light of other specified grounds.iii.An error which is not self-evident and which can be discovered by a long process of reasoning cannot be treated as an error apparent on the face of record justifying exercise of power under Section 80.iv.An erroneous order/decision cannot be corrected in the guise of exercise of power of review.v.A decision/order cannot be reviewed under Section 80 on the basis of subsequent decision/judgment of a coordinate or larger Bench of the tribunal or of a superior court.vi.While considering an application for review, the court must confine its adjudication with reference to material, which was available at the time of initial decision. The happening of some subsequent event or development cannot be taken note of for declaring the initial order/decision as vitiated by an error apparent.vii.Mere discovery of new or important matter or evidence is not sufficient ground for review. The party seeking review has also to show that such matter or evidence was not within its knowledge and even after the exercise of due diligence, the same could not be produced before the court/tribunal earlier.viii.A mistake or an error apparent on the face of the record means a mistake or an error, which is prima-facie visible and does not require any detail examination. In the present case the petitioner has not been able to point out any error apparent on the face of the record.ix.Section 80 of the CPC provides for a substantive power of review by a civil court and consequently by the appellate courts. The words occurring in Section 80 mean subject to such conditions and limitations as may be prescribed thereof and for the said purpose, the procedural conditions contained in Order 45 Rule 1 must be taken into consideration. Section 80 of the CPC does not prescribe any limitation on the power of the court, but such limitations have been provided for in Order 45 Rule 1.x.The power of a civil court to review its judgment/decision is traceable in Section 80 CPC. The grounds on which review can be sought are enumerated in Order 45 Rule 1. 20.Behind the above legal background comes a consideration of the application. As stated earlier, the Applicant contended that she had vacated the premises much earlier and that the claim for mense profits was baseless and ought to be reviewed. In the impugned judgment, this Court awarded mesne profits from May 2019 to April 2025. The award was based on the premise that the Applicant was in possession of the property. The Applicant now argues that the record, specifically the trial Court proceedings, contains evidence that she was evicted on 18th October 2019. 21.According to the trial Court record annexed to the application, it is the position that on 2nd July 2020, Sgt Hellen Koech of DCI Langata testified that on 18th October 2019, she found 24 men evicting the Applicant and removing her household items from the subject property. However, the same officer testified that the OCS Langata instructed the Applicant to return to her house. 22.In the impugned judgment, this Court specifically directed the Applicant to give vacant possession of the house within 30 days of judgment. Such finding was arrived at after evaluation the evidence that concluded that the Applicant remained in possession. To challenge such a factual finding would be an invitation to this Court to re-evaluate the entire evidence and the trial record. It is a long-drawn process of reasoning on points which cannot be said to be an error apparent on the face of the record. Such is the province of an appellate Court. A review is not a backdoor to appeal a Judge’s reasoning or findings of fact. 23.Consequently, this Court finds that the Applicant has not met the threshold for review. The issues raised are substantive challenges to this Court’s findings of fact, which may be properly the subject of an appeal. To that end, the application is unmerited. Disposition: 24.As I come to the end of this ruling, I wish to apologize to the parties for the late delivery of this decision which was occasioned by my engagement at the Judicial Service Commission where I serve as a Commissioner given that the Commission has been running interviews since December 2025 to date. Once again, galore apologies. 25.In the end, the following Orders hereby issue: -(a)The Notice of Motion dated 17th July 2025 is hereby dismissed.(b)Costs of the application to the 2nd and 3rd Respondents.Orders accordingly. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 22ND DAY OF MAY,2026.A.C. MRIMAJUDGERuling virtually delivered in the presence of:Ms Mbugua for Mr. Kago, Learned Counsel for the Applicant.No appearance for, Learned Counsel for the 2nd and 3rd Respondents.No appearance for the 1st Respondent.Michael/Amina – Court Assistants.