https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9198

Sime Darby Oils Professional SDN, BHD v Nairobi Beauty World Ltd (Commercial Case E604 of 2023) [2026] KEHC 9198 (KLR) (Commercial and Tax) (25 June 2026) (Ruling) Neutral citation: [2026] KEHC 9198 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Commercial Case E604 of 2023 PM Mulwa, J June 25, 2026 Between Sime Darby Oils Professional SDN, BHD Plaintiff and Nairobi Beauty World Limited Defendant Ruling 1.This ruling determines the Notice of Motion dated 14th May 2025 brought pursuant to Order 45 Rule 1 of the Civil Procedure Rules, Section 80 of the Civil Procedure Act, Sections 1A, 1B and 3A of the Civil Procedure Act. The Applicant seeks an order reviewing, varying and/or setting aside this Court's ruling delivered on 24th April 2025 and, upon such review, an order dismissing the Plaintiff's application dated 7th December 2023 with costs. 2.The application is premised on the grounds appearing on its face and is supported by the affidavit of Abdirahim A. Hassan. The Applicant contends that the Court's ruling was founded substantially on the decision of the Registrar of Trade Marks delivered on 9th April 2021, which resulted in the expungement of the Applicant's trademark. It is averred that the Court failed to appreciate the Applicant's evidence regarding the registration and use of its trademark and that the proceedings before the Registrar were founded on forged documents. 3.The Applicant maintains that he never executed the documents relied upon before the Registrar and that the injunctive orders issued by the Court render his intended appeal nugatory. It is further contended that the Plaintiff failed to demonstrate irreparable harm and that the Court ought to review its decision on account of new evidence and errors apparent on the face of the record. 4.The application is opposed by the Replying Affidavit of Abdulkadir Warsame, sworn on 15th September 2025. He deposes that the application does not satisfy the legal threshold for review. He traces the dispute to proceedings before the Registrar of Trade Marks, in which the Applicant's mark was expunged and the Respondent was declared the lawful proprietor of the trademark "C.B.C Brand". The Respondent avers that an earlier challenge to the Registrar's decision was unsuccessful and that thereafter its trademark was duly published and registered, while the Applicant's mark was formally expunged from the Register. 5.He further contends that no new evidence has been disclosed to warrant review, and that the allegations of forgery are unsupported by any forensic report, police investigation or other credible material. It maintains that such allegations ought to have been raised before the Registrar or in appropriate proceedings challenging the Registrar's decision. 6.The Respondent also accuses the Applicant of engaging in forum shopping through multiple proceedings concerning the same trademarks and contends that the Applicant no longer possesses any proprietary rights capable of protection by the Court. It is further deposed that the Applicant continues to use the disputed marks notwithstanding the subsisting court orders and the expungement of its trademark. 7.The application was heard by way of written submissions. The Applicant's submissions are dated 2nd February 2026, while the Respondent's submissions are dated 3rd March 2026. Analysis and determination 8.I have carefully considered the application, the affidavits on record, and the submissions filed by both parties. The sole issue for determination is whether the Applicant has satisfied the requirements for review under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 9.Section 80 of the Civil Procedure Act grants the Court power to review its own decree or order. Order 45 Rule 1 provides that a party seeking review must demonstrate:i.Discovery of new and important matter or evidence which, despite the exercise of due diligence, was not within his knowledge or could not be produced at the time the order was made;ii.A mistake or error apparent on the face of the record; oriii.Any other sufficient reason. 10.The first issue for consideration is the discovery of new and important evidence. The Applicant asserts that the signatures on the documents filed with the Registrar were not his and amounted to forgery, and that the matter was reported to the police. However, no forensic document examination report, police investigation report, or expert evidence has been placed before this Court to substantiate those allegations. It is trite law that bare allegations of forgery, without supporting evidence, cannot constitute discovery of new and important evidence. Moreover, the Applicant has not demonstrated that the alleged evidence was unavailable despite exercising due diligence at the time the impugned ruling was delivered. 11.Further, the mere discovery of new or important matter is not sufficient ground for review; the party seeking review must also show that such matter or evidence was not within its knowledge and, even after the exercise of due diligence, could not have been produced before the court earlier. 12.The Applicant has not demonstrated that the alleged evidence was unavailable despite the exercise of due diligence at the time the impugned ruling was delivered. If the Applicant disputed the authenticity of the documents relied upon before the Registrar, that issue ought to have been raised in the proceedings challenging the Registrar's decision or in appropriate proceedings directed at that decision. The application fails on this ground. 13.The second issue is an error apparent on the face of the record. An error apparent on the face of the record is one that is self-evident and does not require a long-drawn process of reasoning to establish. It needs no elaborate arguments to establish it. 14.The Applicant’s complaint is essentially that the Court reached the wrong conclusion. Upon a thorough examination of the record, I find no such self-evident error. 15.The last consideration is any other sufficient reason. The Applicant has also failed to establish any other sufficient reason warranting interference with the Court's ruling. The record shows that the Respondent's trademark was duly registered following the Registrar's decision and that the Applicant's trademark was published as expunged from the Register of Trade Marks. Whether those actions were lawful or otherwise is a matter that can only be resolved through the appropriate appellate or substantive proceedings, not through an application for review based on unsubstantiated allegations. 16.The principles governing review are now settled. In National Bank of Kenya Ltd v Ndungu Njau [1997] KECA 71 KLR, the Court of Appeal held:“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.” 17.A review is not an avenue for a party dissatisfied with a decision to re-argue its case or invite the court to sit on appeal over its own judgment. 18.This Court therefore finds that the application is an attempt to re-open issues already considered and determined by the Court. Such an exercise falls outside the limited jurisdiction conferred by Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. 19.A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected. It lies only for patent error. 20.In the result, I find that the Notice of Motion dated 14th May 2025 is devoid of merit. The same is hereby dismissed with costs to the Respondent.It is so ordered. RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026.PETER MULWAJUDGEIn the presence of:Ms. Otokoma h/b for Mr. Onyony for Plaintiff/RespondentMr. Oburi h/b for Mr. Jura for Defendant/ApplicantCourt Assistant: Lispa