https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10961

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO E067 OF 2025** TAKAFUL INSURANCE OF AFRICA LIMITED--------------------- APPELLANT/APPLICANT VERSUS MILESTONE CONTRACTORS LIMITED----------------------------------------- RESPONDENT **(On the Appellant’s application dated 17th November,2025)** **RULING.** 1. For determination is the Appellant’s application is dated 17th November,2025. In the application, the Appellant sought the following orders; - 2. THAT this application be certified as urgent, and a hearing date be given on a priority basis. 3. THAT this Honourable Court be pleased to review and set aside in part the Ruling delivered on 10th November 2025, specifically the directive requiring the Applicant/Appellant to deposit half the decretal sum as a condition for stay of execution. 4. THAT upon review, the Court be pleased to substitute the said order with an appropriate order consistent with the nature of the claim herein, such as security for costs. 5. THAT the costs of this application be provided for. 6. The application is supported by a supporting affidavit sworn by Learned Counsel for the Appellant/Applicant. 7. Essentially, the Appellant has invited this court to reconsider the orders issued by this Court on the Appellant’s notice of motion application dated 16th May 2025 wherein the Appellant/Applicant was granted stay of execution of the decree issued in ***Butali CMCC E018 OF 2020*** pending determination of the appeal on the condition that the Appellant/Applicant deposit half of the decretal sum into a joint an interest-earning bank account in the name of the advocates representing the parties to this Appeal. 8. The Respondent is opposed to the present application vide a replying affidavit sworn on 15th December,2025 by one Solomon K. Chepkwony, a general manager of the Respondent. The Respondent urges that the impugned court orders issued correctly and should not be disturbed. 9. Further reference is made by the Respondent to a series of matters before the lower court being Butali PMCC Nos. 22 of 2021, 18, 152,153,154,156,169,173,190,191,192,207all of 2020, Kakamega SCC 343 of 2024 and Webuye PMCC 76 of 2023 arising from the subject road accident which occurred 24th August, 2020. Some of the Plaints filed in these suits and/or decrees are annexed to the replying affidavit. Notably, these are claims by third parties for compensation for injuries sustained in the road accident. 10. The Court has also considered the Respondent’s submissions herein. By the time of writing this ruling, no submissions have been filed on behalf the Appellant. **ANALYSIS AND DETERMINATION.** 1. Applications for review of court orders are brought under **Order 45 Rule 1 of the Civil Procedure Rules** on the following grounds; - **Order 45 Rule 1 -** **Application for review of decree or order** **“(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.” (Emphasis supplied)** 1. In the instant application, the Appellant contends that there is an apparent error on the face of the orders issued by this court on its earlier application dated 16th May,2025. It is urged that, considering that the decree appealed from only bear declaration orders, the Court erroneous made the order compelling the Appellant to deposit half of the decretal award as security pending determination of the Appeal. 2. The Court noted that Appellant moved with speed given that the Application herein is dated 17th November, 2025 whereas the ruling was delivered on 10th November,2025. The application is thus brought without undue delay. 3. In considering this application, this court is guided *inter alia* by the following decisions from the superior courts. 4. The Court of Appeal Case of **NATIONAL BANK OF KENYA LIMITED vs NDUNGU NJAU [1997] KECA 389 (KLR)** ably held thus; - **“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. **In NYONG’O & OTHERS V ATTORNEY GENERAL (CIVIL APPEAL 250 OF 2019) [2026] KECA 200 (KLR) (6 FEBRUARY 2026) (JUDGMENT)** the Court of Appeal held;- **“It is trite that review is not an appeal in disguise and cannot be used to re-open matters on the merits simply because a party is dissatisfied with the outcome. As this Court stated in National Bank of Kenya Ltd v Ndungu Njau, Civil Appeal No. 211 of1996 (Court of Appeal at Nairobi) [1997] eKLR, an error or omission warranting review must be self-evident and must not require elaborate argument; and misconstruing a statute or reaching an erroneous conclusion of law is not a ground for review. See, also, Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243”** 1. Similarly, in **KENYA POSTEL DIRECTORIES LIMITED V D YELLOW PAGES PUBLISHING & MARKETING LIMITED & ANOTHER (CIVIL APPEAL 562 OF 2019) [2026] KECA 105 (KLR) (30 JANUARY 2026) (JUDGMENT)** the Court of Appeal held;- **“The principles governing review are well settled. Review is not an appeal in disguise. It is available only on discovery of new and important matter; error apparent on the face of the record; or any other sufficient reason. An error apparent on the face of the record must be self-evident and not one that requires elaborate argument or a re-evaluation of contested issues (see Muyodi v Industrial and Commercial Development Corporation & Another [2006] 1 EA 243; National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR).”** 1. From the foregoing observations, it is trite that grounds seeking a review of court orders are **discovery of new and important matter; error on the face of the record that is so apparent/ self-evident, that one doesn’t to need to look far to see it or for any other sufficient reason.** A review cannot be sought where an appeal has been preferred on the same issue. Furthermore, review proceedings are not meant to provided an alternative means to appeal what is considered to be an appeal in disguise. Finally, misconstruing a statute or reaching an erroneous conclusion of law is not a ground for review. 2. At this stage, this court is dealing with an application and should take some caution not delve into issues and/or making a determination of substantive issues that should be left for determination in the main, that is the appeal. 3. The ground(s) upon which the Appellant is seeking a review of the earlier orders of the Court is clear; that there exists an apparent error on the orders. 4. The court has reviewed this matter afresh and confirms that the appeal herein arose from the Judgement delivered in ***Butali CMCC E018 OF 2020*.** The Respondent has indicated that there is a series matters that are related to this matter but has not linked them directly to the subject of the Appeal. 5. The parties and the nature of the other claims pending before the Lower Courts are different. Whereas in this suit the Appellant (Insurer) filed a disclaimer suit against the Respondent (Insured), the series of the suits mentioned are claims for compensation for personal injuries. There is no indication on the face of the Judgement of the Lower Court that the court addressed or delt with any other suit alongside ***Butali CMCC E018 OF 2020*.** 6. It also clear that the orders of stay of execution that were sought by the Appellant pending determination of the Appeal were specifically on the decree ***Butali CMCC E018 OF 2020***. As such, the focus of the court should be on the present matter on appeal and the applications thereof. 7. The Court has also revisited the orders of the lower court and the decree thereof and confirmed that they are declaratory orders in nature. Therefore, as correctly contended by the Appellant/Applicant, there exist an apparent error on the earlier orders of this court on the Appellant/Applicant motion dated 16th May,2025. This is so, because is impossible to ascertain what is half of the decretal sum when the decree issued by the Lower Court only entails declaratory orders or rather a declaration of the obligations of the parties under the contract of insurance. 8. The appropriate orders to issue in the premises is for the Appellant to provide security for the costs of this Appeal. It will be being unfair to Appellant to compel the Appellant herein to deposit security for any other decree that may have issue in the claims by third parties, as invited by the Respondent, before this court make a determination of the issues raised in this appeal. This court can only pronounce itself on the obligations of the Appellant with regard to the third parties upon hearing the Appeal on its full merits. 9. The Appellate Court has discretionary powers to set the terms and/or form of security as it may deem reasonable, just and in manner that balances the interests of the parties to an appeal. Indeed, there is a self-evidence error on the face of the orders issued by the Court on 10th November,2025 which call for the intervention of this Court. 10. The Court thus hereby sets aside the order requiring the Appellant to deposit half of the decretal award as security pending determination of the Appeal. In its place, the Appellant shall deposit a reasonable amount of money as security for the costs of this appeal which fine at Kshs, 100,000/=(One hundred thousand). To expedite the matter, this amount shall be deposited in the court account. 11. The Appellant’s application dated 17th November,2025 is therefore merited and is allowed on the following revised terms; - 12. The order compelling the Appellant/Appellant herein to deposit half the decretal sum into an interest-earning account in a reputable commercial Bank, to be held by both the advocates parties to this appeal is hereby set aside. 13. The Appellant shall deposit in court a sum of Kshs, 100,000/= (one hundred thousand) as security for the costs of this appeal within a period of 30 days of delivery of this ruling. 14. The costs of this application shall be in the cause. 15. It is hereby so ordered. 16. Right of Appeal 30 days. **DATED, SIGNED AND DELIVERED IN OPEN COURT AT KAKAMEGA THIS 20TH DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Angog’a/Velma Appellant present. Mr. Adwar for the Respondent present online.