https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12189

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **JUDICIAL REVIEW NO. 3B OF 2022** **REPUBLIC....................................................................................................................APPLICANT** **VERSUS** **PERMANENT SECRETARY, THE INTERIOR MINISTRY** **& NATIONAL COORDINATION ….................................................................... RESPONDENT** **AND** **THOMAS OTIENO LANGO …………………………….....................EX-PARTE APPLICANT** **R U L I N G** 1. Before this Court for determination is a Notice of Motion dated 20.8.24, in which the Ex parte Applicant (“the Applicant”) seeks the review of the ruling of 6.6.24 dismissing his judicial review application dated 26.8.22 (the JR application). He also prayed that costs be provided for. 2. In the ruling dismissing the JR application, the Court stated: ***[A]lthough parties were directed to file submissions on 6.5.24, to date no such submissions have been filed. The application as it stands is not prosecuted and as such, it is dismissed for want of prosecution.*** 1. The Applicant is aggrieved by that finding and asserts that his submissions were, in fact, on record having been filed on 27.9.23. The Applicant thus urged that the Court's holding that submissions had not been filed constitutes a mistake or error apparent on the face of the record. 2. The Respondent opposed the application *vide* grounds of opposition dated 17.4.25. The grounds are that the Application is mischievous and an abuse of court process; that the Applicant has not been keen in prosecuting the JR application, and failed to attend court on various dates. He even failed to attend Court on 7.10.24 for the present Application. The Respondent urged that the application for reinstatement be dismissed. 3. The jurisdiction of this Court to review orders is set out in Section 80 of the Civil Procedure Act which provides: ***Any person who considers himself aggrieved—*** 1. ***by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; or*** 2. ***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.*** 3. Order 45 of the Civil Procedure Rules goes on to provide as follows: ***(1) Any person considering himself aggrieved—*** ***(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 allowed,*** ***and 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 reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.*** 1. Section 80 of the Civil Procedure Act and Order 45 of Civil Procedure Rules, allows a party aggrieved by a decree or order to apply for review of the same. Order 45 Rule 1 stipulates review of an order may be sought on the basis of discovery of new and important matter or evidence which after due diligence, was not within his knowledge. Additionally, an aggrieved party may seek review of an order on account of some mistake or error apparent on the face of the record, or for any other sufficient reason. Such application must be made without unreasonable delay. 2. In **National Bank of Kenya Ltd v Njau [1997] KECA 71 (KLR)**, the Court of Appeal considered when a review may be granted and stated: ***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 a ground for review.*** 1. I have considered the circumstances herein. The record shows that directions were given on 16.5.23 for the filing of submissions. The Applicant’s submissions were filed on 27.9.23. On 6.5.24, the Applicant’s counsel informed the Court that he had filed submissions while the Respondent had not and requested a judgment date. When the Court said the submissions were not in the file, the Court assistant said he would print and place the same in the court file. The Court then directed that the submissions be printed and placed on the court file. The Court fixed judgment for 6.6.24. On that date however, the Court delivered the impugned ruling dismissing the JR application for want of prosecution for failure to file submissions. 2. It is quite evident that there is an apparent error on the part of the Court.The Applicant’s submissions had indeed been filed. The error is self-evident. I am satisfied that the Application meets the threshold for review. Applying the principle set out by the Court of Appeal in the **National Bank** case (supra), I find that it is necessary to correct the error in the interest of justice. 3. I have taken into account the contention by the Respondent that the Applicant has shown disinterest in the matter by failing to attend court on several occasions. While this may be true, and is not condoned, I find that this is a case of the pot calling the kettle black as the Respondent also failed to attend Court on several occasions. The Respondent has also failed to comply with directions of the Court to file submissions. Even after being granted an extension on 16.10.23, the Respondent has to date not filed submissions. 4. The Court must balance the interests of both parties. In this regard, I am guided by the holding in **Patel -vs- E.A. Cargo Handling Services Ltd [1974] EA 75 at page 76 C and E** where the Court of Appeal stated: **There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgement except that if he does vary the judgement, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.** 1. The circumstances herein are such that the prejudice that will be suffered by the Applicant should the orders sought not be granted, will be immense. In exercise of its discretion therefore, the Court opts for the lower rather than the higher risk of injustice, namely to reinstate the JR application for hearing on merit. 1. The upshot is that the Application dated 20.8.24 is allowed, with the effect that the application dated 26.8.22 is reinstated for hearing and determination on merit. Costs in the cause. **DATED, SIGNED and DELIVERED at Malindi this 31st day of July 2026** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **M. THANDE** **JUDGE**