https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4802

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC 70 OF 2019** **SAFEWAY HIPERMARKETS LTD - PLAINTIFF /APPLICANT** **VS** **NATIONAL SOCIAL SECURITY FUND** **BOARD OF TRUSTEES -DEFENDANT /RESPONDENT** **THE HON ATTORNEY GENERAL -1ST THIRD PARTY** **ENDESHA MULTIPURPOSE** **DEVELOPMENT CENTRE LIMITED -2ND THIRD PARTY** **RULING** **(In respect of the Applicants application dated 25/2/26)** 1. The Applicant moved this Court, vide its application dated 25/2/26, pursuant to Sections 80, 1A, 1B and 3A of the Civil Procedure Rules, seeking orders of review of this Court’s judgement delivered on 10/12/25. That, upon review, the Court be pleased to vary paragraph 87(b) of the judgement and order that interest on the sum of Kshs 30,712,320/- (being the refund of the purchase price) shall accrue at Court rates from 18/7/2017, the date of the National Land Commission’s [NLC] final decision directing the Respondent to compensate the Applicant, until payment in full. In addition, the Applicant sought costs of the application. 2. It is averred that on 22/1/2016 the National Land Commission revoked the Applicant's suit land vide Kenya Gazette No 307 of 22/1/2016, and its decision was delivered on 18/7/2017, directing the Respondent to compensate the plaintiff for selling it a defective title. That the Respondent was therefore aware of the National Land Commission’s decision and its obligation to refund the purchase price paid to it in 2005 as at 18/7/2017. Further, that the Respondent has had the benefit and use of the funds since October 2005, and it is just and equitable, and consistent with the provisions of Section 26 of the Civil Procedure Act, that interest should run from October 2005, or alternatively from the date of filing of the suit on 18/7/2017. 3. Further, that in the judgment of the Court delivered on 10/12/25, the Court awarded interest on the sum awarded from the date of judgment, despite the fact that the National Land Commission awarded it compensation on 18/7/2017, which date the interest ought to have accrued. That, on that basis, there is an error on the face of the record, and it is just and equitable, and in the interests of justice, that the error be corrected so that the Applicant does not suffer prejudice and financial loss from the loss of interest on the awarded sum. That the application was filed without delay and made in good faith. 4. Opposing the application, the Respondent contends and categorically states that there is no error on the face of the judgment. The period for which interest is to be calculated is a matter for the discretion of the Court, and there is no evidence that the Court exercised that discretion wrongly in any way. That the Applicant's assertion that the National Land Commission delivered its ruling on 18/7/2017, which is the basis on which interest should have started to run, is not an error on the face of the record and not an obvious mistake. That the application is aimed at seeking the reopening of the suit and that the grant of the orders sought will fundamentally and radically change the judgment intended to be reviewed, thereby affecting the finality of the Court's decision. In the end, there is no justification for reviewing the judgment, and the application is urged to be dismissed with costs. 5. I have read and considered the parties' written submissions, and I thank counsel for the highlights and insights. 6. The key issue for determination is whether the application has merit, that is, whether the Applicant is entitled to a review of the judgment delivered on 10/12/25. 7. The power of this Court to review its own judgments is discretionary but must be exercised strictly within the confines of the law. The underpinning legal provision for seeking review is found in Section 80 Civil Procedure Act which states that; “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. The above provision is further augmented by Order 45 rule 1 Civil Procedure Rules that; “(1) Any person considering himself aggrieved— 1. by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or 2. 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.” 3. An Applicant seeking orders of review must demonstrate that; 4. There is discovery of new and important matter or evidence, which was not in his Knowledge or could not be produced by him after exercise of due diligence; or 5. There is a mistake or error apparent on the face of the record or; 6. There is sufficient reason; and 7. The application for review must have been made without undue delay. 8. The nature of the error contemplated under Order 45 rule 1(b) of the Civil Procedure Rules is one that is apparent on the face of the record, not one that has to be fleshed out and searched. The Court in the case of Republic vs Dentists Board & another (Misc. Civil application 59 & 63 of 2019) (Consolidated) {2021} KEHC 298 (KLR) (Judicial Review) (16 November 2021) (Ruling) went into great depth to define an error apparent on the face of the record, stating that; “An error apparent on the face of the record cannot be defined precisely or exhaustively, there being an element of undefinitiveness inherent in its very nature and it must be determined judicially on the facts of each case. 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. An error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record even though another view was possible. Mere error or wrong view is certainly no ground for review though it may be one for appeal.” 1. It is the Applicants' claim that the Court awarded interest on the refunds from the date of judgment rather than from 18/7/2017, when the National Land Commission determined and directed the Respondent to compensate until payment in full. 2. I have perused the Plaintiff's claim as set out in the plaint, where it sought orders for interest on the refund in the sum of Kshs 30,712,320/- from the date of payment to date. By the application, the Plaintiff has changed the goalposts and is now demanding interest from 18/7/2017. I must state that this is in contrast to its claim in the plaint, and the Plaintiff is clearly advancing a new claim, which was not raised in the suit. This in itself sets a contested fact that ought to have been canvassed at the trial. 3. In the case of Mary Wachuka Kimani -vs- Mark Ng’ang’a Kimani & 2 Others, NRB ELCC. E076 of 2022, the Court cited the case of Francis Origo & Another –vs- Jacob Kumali Munagala [2005] eKLR, where the Court of Appeal aptly pointed out as follows: “Our parting shot is that an erroneous conclusion of law or evidence is not a ground of 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.” 1. I concur with the above decision that the Applicant's claim takes it out of the realm of review, in that what the Court is being asked to do is to go through evidence and long-drawn arguments that were not placed before the Court to arrive at a determination as to whether or not there is an error on the face of the record. An error on the face of the record should be open, manifest, and staring at you without having to go into facts and arguments. 2. In conclusion, therefore, the Applicant's application lacks merit and is hereby dismissed with costs to the Respondent. 3. It is so ordered. **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 23RD DAY OF JULY 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr. Muriuki for the Plaintiff 2. Mr. Ochieng for the Defendant 3. N/A for 1st & 2nd Third Party 4. C.A – Mr. Amos