https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7394

Shericon Agencies Ltd v Cytonn Investment Partners Twenty Llp t/a Cysuites Apartment Hotels & another (Civil Appeal E577 of 2023) [2026] KEHC 7394 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEHC 7394 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E577 of 2023 MO Ado, J May 21, 2026 Between Shericon Agencies Limited Appellant and Cytonn Investment Partners Twenty Llp t/a Cysuites Apartment Hotels 1st Respondent Wasini Resorts Limited t/a Wasini Luxury Suites & Hotel 2nd Respondent Ruling 1.The 1st Respondent filed the Notice of Motion dated 8th May 2025 under Sections 1A, 1B, and 3A of the Civil Procedure Act, Order 45 Rule 1, and Order 51 Rule 1 of the Civil Procedure Rules. The 1st Respondent seeks, inter alia, review, variation, and/or setting aside of the Judgment delivered on 27th February 2025. 2.The application is supported by the grounds set out on its face and the supporting affidavit sworn on behalf of the 1st Respondent. The gravamen of the application is that the Court erred in finding that the 1st Respondent was liable for the 2nd Respondent’s debts on account of failure to issue a notice under Section 3 of the Transfer of Business Act, Cap. 500. 3.The 1st Respondent stated that it acquired the 2nd Respondent’s business pursuant to a Share Purchase Agreement dated 16th April 2018, together with certain assets, but excluding liabilities, including the debt allegedly owed to the Appellant. 4.The 1st Respondent averred that unbeknownst to it, the Appellant had obtained a decree against the 2nd Respondent in CMCC No. 5888 of 2017 in the sum of Kshs. 1,238,045.15. It contended that the Appellant proceeded to attach assets belonging to the 1st Respondent on the basis that they belonged to the 2nd Respondent. 5.The 1st Respondent further averred that it successfully challenged the attachment proceedings before the trial court through Objector Proceedings and that the subordinate court, in a ruling delivered on 20th March 2023, upheld its objection after finding that it had established a legal and equitable interest in the attached property under Order 22 Rule 51 of the Civil Procedure Rules. 6.Being dissatisfied with that decision, the Appellant lodged the present appeal. This Court thereafter delivered judgment on 27th February 2025 allowing the appeal. 7.The 1st Respondent contended that the issue concerning applicability of Section 3 of the Transfer of Business Act was introduced in the Appellant’s submissions after the 1st Respondent had already filed its own submissions, thereby denying it an opportunity to respond to the issue before judgment was rendered. 8.It was therefore argued that the Court reached its determination without considering the 1st Respondent’s response to the applicability of the Transfer of Business Act and that such omission constituted an error apparent on the face of the record warranting review. 9.The application was opposed through a replying affidavit sworn on behalf of the Appellant. The Appellant contended that the application was incompetent as the 1st Respondent had already lodged a Notice of Appeal dated 5th March 2025 against the whole judgment, thereby electing the appellate process. 10.The Appellant further contended that the issue regarding non-compliance with the Transfer of Business Act had been raised throughout the proceedings including in the replying affidavit before the subordinate court, the written submissions and the Memorandum of Appeal. 11.It was further averred that the 1st Respondent had in fact addressed the issue in its own submissions and could not therefore claim that it had been denied an opportunity to respond. 12.The Appellant submitted that the application merely sought to re-open and re-argue issues already determined by the Court and that any alleged error in interpretation or application of the law constituted a proper ground for appeal and not review. Analysis and Determination 13.I have considered the application, affidavits, and written submissions filed by the parties. The issue for determination is whether the 1st Respondent has satisfied the threshold for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 14.Section 80 of the Civil Procedure Act provides as follows:“Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, 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.” 15.Order 45 Rule 1 of the Civil Procedure Rules, on the other hand, provides that a party seeking review must demonstrate discovery of new and important matter, mistake or error apparent on the face of the record, or any other sufficient reason, and that the application must be brought without unreasonable delay. The provision states that:“ 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 judgement to the court which passed the decree or made the order without unreasonable delay.” 16.The question is whether the present application is competent in light of the Notice of Appeal dated 5th March 2025, and lodged on 13th March 2025 by the 1st Respondent against the entire judgment of this Court. 17.From the above provision, it is clear that Order 45 Rule 1(1)(a) of the Civil Procedure Rules explicitly mandates that a person considering themselves aggrieved may apply for a review of a decree or order "from which an appeal is allowed, but from which no appeal has been preferred". 18.The record clearly establishes that the Applicant filed a Notice of Appeal on 13th March 2025. Under Rule 77 of the Court of Appeal Rules and settled Kenyan jurisprudence, an appeal is mathematically and legally "preferred" the moment a Notice of Appeal is lodged, thereby invoking the jurisdiction of the appellate court. 19.It is settled law that a party cannot simultaneously pursue review proceedings while at the same time invoking the appellate jurisdiction against the same decision. The Court of Appeal in Prime Steel Mills Limited v Esquire Investment Limited & another [2024] KECA 308 (KLR), stated that:“………it is also not in dispute that a party cannot pursue an appeal and a review at the same time.” 20.The Court of Appeal further observed that a litigant who attempts to pursue both processes simultaneously risks pursuing mutually inconsistent remedies. The Court stated as follows: -“In doing so, it might suffer the fate of the proverbial hyena, which on reaching a road junction and not sure which road that led to the place where the smell of meat was coming from, it decided to walk astride both roads. As it stretched the legs, it split into two and suffered a painful death.” 21.In this case, as already been pointed out, the 1st Respondent lodged a Notice of Appeal at the Court of Appeal on 13th March 2025, challenging the whole judgment of this Court. By doing so, it elected to invoke the appellate process. Having taken that step, it cannot properly maintain a review application seeking reconsideration of the same judgment before this Court. 22.On that ground alone, the application is incompetent. 23.Even if I were wrong on the foregoing issue, the application would still fail on the merits. 24.The basis of the application is that the Court allegedly erred in finding that the 1st Respondent was liable by reason of non-compliance with Section 3 of the Transfer of Business Act and that the Court failed to consider the 1st Respondent’s response on the issue. 25.In my view, those complaints do not disclose an error apparent on the face of the record. Rather, they challenge the correctness of the Court’s reasoning and conclusions on the law and evidence. 26.An error apparent on the face of the record must be self-evident and should not require elaborate argument or extensive examination of the law and evidence in order to establish it. 27.In NATIONAL BANK OF KENYA LIMITED vs NDUNGU NJAU [1997] KECA 389 (KLR), the Court of Appeal stated 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.” 28.The issue concerning the applicability of the Transfer of Business Act was part of the record before the Court. Whether this Court correctly interpreted or applied the provisions of that statute is a matter that would require substantive legal argument and reconsideration of the merits of the judgment. Such a complaint properly falls within the province of an appeal and not review. 29.Further, the record demonstrates that the issue regarding the Transfer of Business Act had been raised during the proceedings and addressed by the parties in their submissions. The 1st Respondent cannot, therefore, persuasively contend that the issue arose completely outside the record. 30.I also note that the judgment sought to be reviewed was delivered on 27th February 2025, while the present application was filed on 8th May 2025. Although the delay may not in itself have been inordinate, no satisfactory explanation was offered for the delay, particularly after the 1st Respondent had already lodged a Notice of Appeal. 31.The 1st Respondent’s grounds seeking review may be grounds of appeal; however, they cannot be the basis for a review under Order 45 Rule 1 of the Civil Procedure Rules. 32.The upshot of the foregoing is that the application before this court is devoid of merit and is therefore dismissed with costs. 33.It is so ordered. DATED, SIGNED, AND DELIVERED AT NAIROBI THIS 21ST DAY OF MAY 2026HON. MR. JUSTICE MOSES ADOJUDGE OF THE HIGH COURTIn the Presence of:Moses C/ANdabuki………………for the ApplicantThuita……………for the Respondent