https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10035

Muema v Larabi (Civil Appeal E022 of 2024) [2026] KEHC 10035 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 10035 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E022 of 2024 EO Bitta, J June 9, 2026 Between Paul Muinde Muema Appellant and Hellen Larabi Respondent (Being an Appeal from the Ruling made by the Small Claims Court at Machakos. Honourable B. A Luova delivered on the 25th day of January 2024 at Machakos SCCC/E751 of 2023) Judgment 1.The Appellant, vide a statement of claim dated 5th September 2023, sought compensation against the Respondent for material damages before the Small Claims Court at Machakos, SCC Claim No. E751 of 2023. 2.The claim was in respect of an accident that occurred on 22nd March 2023, in which the Respondent’s vehicle was blamed. 3.The case was defended and proceeded under section 30 of the Small Claims Court Act. 4.The Court rendered its decision on 16th November 2023, dismissing the same for the reason that the Appellant failed to establish an ownership nexus between the subject motor vehicle and the Respondent. 5.Aggrieved by the decision of the Adjudicator, the Appellant applied for review of the decision vide his application dated 30th November, 2023. 6.The Appellant invoked the provisions of sections 1A,1B,3A,3B & 80 of the Civil Procedure Act, Order 45 Rule 1 of the Civil Procedure Rules 2010 as the basis of his motion. 7.The application was premised on allegations that there had been discovery of new and important evidence which was not available to the Appellant’s counsel at the time the said judgment was being made, that the matter formed part of a series with another matter filed as Machakos SCCC E758 of 2023 where the Claimant in that case sustained bodily injuries and where the police abstract which was obtained much later after the Appellant had obtained his, indicated the name of the Respondent as the beneficial owner of the motor vehicle. 8.The application for review was opposed by the Respondent, who stated that the application was bad in law as there was no sufficient ground to warrant the grant of the review orders sought. 9.That the Appellant failed to demonstrate what hindered him from discovering the new evidence, as his counsel had custody of the annexed police abstract at the time of instituting the claim, and as a matter of fact, both claims were filed by the Appellant’s law firm, and that the Appellant failed to demonstrate any error apparent on the face of the record. 10.The Adjudicator, citing the provisions of section 41 of the Small Claims Court Act, which in her view mirrors the provisions relied on by the Appellant under Order 45 Rule 45 of the Civil Procedure Rules as providing the threshold for review, observed that the Appellant’s counsel had instituted another suit a day apart from the Appellant’s relying on the very same document that the Appellant was claiming to have newly discovered after judgment. 11.The Adjudicator agreed with the submissions of the Respondent that the police abstract, which the Appellant was alleging to have newly discovered after judgment, was within the knowledge of the Appellant’s counsel and did not constitute new evidence that could not be availed after conducting due diligence as asserted by the Appellant. 12.The Adjudicator further held that the Appellant in his application for review did not seek to reopen the case, so that even if the prayer for review were to be allowed, the new evidence could not be admitted. 13.The Adjudicator observed that the court could not move suo moto and grant prayers that had not been sought. 14.The Adjudicator consequently held that the threshold to vary the judgment delivered on 16th November, 2023, had not been met, the notice of motion for review dated 30th November, 2023, was dismissed with costs to the Respondent. 15.It is that decision, declining review, which is the subject of the present appeal. 16.The Appellant cites four grounds for appeal; he submits that the Adjudicator erred in law and fact by making a finding that there was no new and important fact to warrant a review. 17.That the Adjudicator erred in finding the Appellant had wrongly sued the Respondent. 18.That the Adjudicator proceeded on wrong principles when declining review of the judgment, failing to apply the precedents and tenets of applicable law, and lastly, the Adjudicator failed to evaluate the evidence, thereby arriving at an erroneous decision. 19.Both parties filed written submissions on the appeal articulating their rival positions on the appeal. 20.I have considered the Memorandum of appeal, the record of appeal, the supplementary record of appeal, the lower court file, and the respective submissions by the parties. 21.I believe that the only issue for determination is whether the subordinate court erred in dismissing the Appellant’s application for review and what orders should be made in the circumstances of the case. 22.Order 45 of the Civil Procedure Rules, invoked by the Appellant, gives specific grounds upon which review applications can be made. 23.These are: -a.Where there is a new and important matter or evidence which, after exercise of due diligence, was not within the knowledge of an applicant at the time the decree was passed,b.Where there is a mistake or error apparent on the face of the record andc.For any other sufficient reason 24.Our courts have enunciated the above criteria with consistency. In National Bank of Kenya Limited v. Ndungu Njau (Civil Appeal No. 211 of 1996 (unreported)), the Court of Appeal held as follows:“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. Nor can it be a ground for review that the Court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of law. Misconstruing a statute or other provision of law cannot be ground for review.”. the learned Judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal, but not for review. Otherwise, we agree that the learned Judge would be sitting in appeal on his own judgment, which is not permissible in law. An issue which has been hotly contested, as in this case, cannot be reviewed by the same Court which had adjudicated upon it.” 25.In Francis Origo & another v. Jacob Kumali Mungala (C.A. Civil Appeal No.149 of 2001 (unreported), the High Court dismissed an application for review because the applicants did not show that they had made discovery of new and important matter or evidence as the witness they intended to call was all along known to them and in any case, the applicants had filed appeal which was struck out before the filing of the application for review. The Court of Appeal stated:“Our parting shot is that an erroneous conclusion of law or evidence is not a ground for a review, but may be a good ground for appeal. Once the appellants took the option of review rather than appeal, they were proceeding in the wrong direction. They have now come to a dead end. As for this appeal, we are satisfied that the learned Commissioner was right when he found that there was absolutely no basis for the appellant’s application for review. We have therefore no option but to dismiss this appeal with costs to the respondent.” 26.Bennett J was correct in Abasi Belinda v. Frederick Kangwamu and another [1963] E.A. 557 when he held that:“A point which may be a good ground of appeal may not be a good ground for an application for review, and an erroneous view of evidence or of law is not a ground for review though it may be a good ground for appeal.” 27.On the same point, the authors, Chittaley & Rao, in the Code of Civil Procedure (4th Edn) Vol. 3, pg 3227, in explaining the distinction between a review and an appeal, had this to say:“A point which may be a good ground of appeal may not be a ground for an application for review. Thus, an erroneous view of evidence or of law is no ground for a review, though it may be a good ground for an appeal.” 28.The power to appeal decisions is vested in appellate courts. Order 44 rule 1 (now Order 45 rule 1 in the 2010 Civil Procedure Rules) gave the trial Court discretionary power to allow review on the three limbs therein stated or “for any sufficient reason.” 29.In Sarder Mohamed v. Charan Singh Nand Sing and Another (1959) EA 793, the High Court held that Section 80 of the Civil Procedure Act conferred an unfettered discretion in the Court to make such an order as it thinks fit on review and that the omission of any qualifying words in the Section was deliberate. 30.In Shanzu Investments Limited v. Commissioner for Lands (Civil Appeal No. 100 of 1993) the Court of Appeal with respect, correctly invoked and applied its earlier decision in Wangechi Kimata & Another Vs. Charan Singh (C.A. No. 80 of 1985) (unreported) wherein the Court held that “any other sufficient reason need not be analogous with the other grounds set out in the rule because such restriction would be a clog on the unfettered right given to the Court by Section 80 of the Civil Procedure Act; and that the other grounds set out in the rule did not in themselves form a genus or class of things which the third general head could be said to be analogous.” 31.In the instant appeal, I note the finding by the Hon. Adjudicator as expressed in her ruling dated 25th January 2024 at page 30 of the Record of Appeal. In her ruling, the Adjudicator observed as follows:‘…I have called for Machakos SCC E 758 of 2023, and I note that the claim was filed by the Applicant’s Advocate law firm on 07/09/23 while the instant claim was filed on 06/09/23 by the said law firm. I therefore agree with the submissions of the Respondent’s counsel that the police abstract issued on 11/05/23 was within the knowledge of the Claimant’s Counsel, and it is not new evidence which could not be availed even after conducting due diligence, as asserted by the Claimant. ‘ 32.I note that the entire appeal centers on this finding by the Adjudicator. 33.It is apparent that counsel for the Appellant, who instituted both suits, was privy to the police abstract that the Appellant sought to introduce after delivery of judgment. 34.It is apparent that the Appellant’s advocate was aware of the contents of the police abstract by 7th September 2023, which was in advance of the hearing of the case, scheduled for 26th October 2023. 35.The Appellant had grounded his application, stating, as one of the grounds in support of his application for review, the fact that there had been discovery of new and important evidence which was not available to the Appellant’s counsel at the time the said judgment was being made. 36.That assertion was easily disproved by the court record in Machakos SCC E 758 of 2023. 37.The provisions of Order 45, rule 3 (2) of the Civil Procedure Rules provide that the Court should not grant any application for review on the ground of discovery of new matter or evidence which the applicant alleges was not within his knowledge or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation. 38.I find that the Adjudicator's decision, based on facts ascertained from the court record, did not amount to a misdirection of fact or law, and that the Appellant failed to provide strict proof of his allegation as required by law. 39.Further, as provided by law, the Appellant’s contention that the Adjudicator erred in fact and law, requiring a re-evaluation of the facts with a view to reaching a different finding on the facts of the case and holding on the law, is better suited to an appeal as opposed to a review based on guidance derived from settled judicial precedence on the subject. 40.The Appellant has challenged the admissibility and probative value of the Respondent’s replying affidavit filed in response to his motion for review. 41.I note from the Court record that the Adjudicator did not give much credence to the same; at page 29 of the Record of Appeal, at paragraph 7 of the Judgment, the Adjudicator observes as follows;‘…the Respondent has filed a replying affidavit and paragraph 8 refers to an annexure which is not annexed in the replying affidavit; as such, the court is not able to confirm the assertions in the replying affidavit.’ 42.It is trite law that the exercise of a Court’s jurisdiction to review is discretionary. 43.But, since the Appellant did not challenge the manner in which the Subordinate Court exercised its jurisdiction, that is all I will say on the issue. 44.The upshot is that I find no misdirection in law on the part of the Subordinate Court in declining the Appellant’s application for review that would merit this Court’s intervention 45.I find that the Appellant has not shown any cause by which the ruling of the subordinate court delivered on 25th January 2024 should be disturbed.I therefore order thatThe Appeal be and is hereby dismissed with costs to the Respondent. DELIVERED, SIGNED, AND DATED AT MOMBASA, THIS 9TH DAY OF JUNE 2026EMMANUEL BITTAJUDGE OF THE HIGH COURT.