https://new.kenyalaw.org/akn/ke/judgment/scc/2026/89

Wafula v Dreamline Express Ltd (Commercial Case E061 of 2025) [2026] SCC 89 (KLR) (8 July 2026) (Judgment) Neutral citation: [2026] SCC 89 (KLR) Republic of Kenya In the Small Claims Court at Voi Commercial Case E061 of 2025 FM Mulama, RM July 8, 2026 Between Veronicah Manga Wafula Claimant and Dreamline Express Limited Respondent Judgment A. Background. 1.There is therefore an error apparent on the face of the record in that the court declined to determine an application regarding its own judgment. Those are not my words but of Issa Awadh while deposing to the affidavit sworn on 24th June 2026. 2.Ms. Orina counsel for the applicant made brief submissions insisting on the same when the court sought to understand where the error was in the orders of the court made on 15/6/2026. The same orders are exhibited as IA-2. 3.The application is clearly for review which has been necessitated by the orders of this court made on 15/6/2026 where this court directed that pursuant to Kenya gazette Notice volume CXXVIII No.80 and dated 8th May 2026 and no.6567 guideline 10(2) the application dated 12/6/2026 was a post judgment request and the same should thus be filed and considered by the Magistrates court and that the applicant pursuant to the said guideline was responsible for initiating the transfer. 4.The application is opposed by the replying affidavit of Veronica Manga Wafula sworn on 29th June 2026. The claimant avers that the court correctly applied the practice directions I have referred to in paragraph 3 above and that there is no error apparent on the face of the record and this is purely an invitation to the court to sit on appeal on its own orders disguised as a review application. 5.I have considered the application, the replying affidavit, the submissions by the applicant dated 2/7/2026 and the law on review. B. Analysis and Determination. 6.A keen perusal of the application and the submissions, the applicant is inviting the court to determine the application dated 15/6/2026 and if the same is allowed then the court to transfer the matter to the magistrates’ court. 7.It is the main argument by the applicant that there is an error on the face of the record by the court relying on the Kenya gazette Notice volume CXXVIII No. 80 and dated 8th May 2026 and No. 6567 guideline 10(2) in deciding the application dated 15/6/2026. 8.I have combed through the application and the submissions and I am at a loss as to where exactly that error is. It would be helpful to all of us to understand how “an error apparent on the face of the record” is defined in law. 9.That the question to be answered by this court is whether there is actually an error on the face of the record. In the case of Republic v Cabinet Secretary for Interior and Co- ordination of National Government Ex parte Abulahi Said Salad [2019] KEHC 12003 (KLR) where the court cited National Bank of Kenya Ltd v Ndungu Njau (1996) KLR 469 (CAK) page 381 it was stated that for the proposition that an error on the face of the record must be self-evident not requiring elaborate arguments to be established; and that it cannot be a ground for review that the “court proceeded on an incorrect exposition of the law and reached an erroneous conclusion of the law” – that if the court has misconstrued a statute/provision of the law – that cannot be a ground for review. 10.In the case of Multi Choice (Kenya) Ltd v Wananchi. Group (Kenya) Ltd and 2 others [2020] eKLR the court held that an error on the face of the record is ‘prima facie’ visible, an error of inadvertence, one that strikes at the mere look of the record 11.In essence what the courts are saying is that it should be an error that is self-evident and not one that requires elaborate legal arguments. 12.I have painstakingly sought to understand the error but none seems to come to mind. Admittedly any application filed after the delivery of the judgment seeking whatever orders especially those setting aside of the judgement like the one dated 15/6/2026 it is deemed a post judgement application and guideline 10(2) is as clear as day and night that that application should be placed before the magistrates’ court. 13.As I have already stated I have combed through the application and submissions with dental floss precision but I am yet to come across any error apparent on the face of the record or otherwise. 14.It is respectfully a misapplication of the law for the applicant to submit that by declining jurisdiction without first determining the Application dated 15/6/2026 to set aside the ex parte judgment, this court inadvertently left the judgment intact while declining to consider the challenge mounted against it which amounts to an error apparent on the face of the record. 15.The above cited authorities together with the case of Nyamogo & Nyamogo v Kogo (2001) EA 174 relied upon by the applicant which I have had occasion to peruse speak a totally different language from the applicant’s interpretation and circumstances the emphasis notwithstanding. 16.What the applicant conveniently left out as part of the holding of the court in the Nyamogo case is as follows;“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. Again, if a view adopted by the court in the original record is a possible one, it cannot 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.” 17.It is now clear why the same was left out. 18.Furthermore, the constitutional right to a fair hearing and its possible infringement does not arise in the circumstances as the court and indeed the directions are simply asking the applicant to file the application in the proper forum following the Eldoret decision taking away jurisdiction from the small claims court in road traffic accident claims. 19.Consequently, therefore it is my considered view there was no error apparent or otherwise as the orders issued were based on the context of the matter before me and the published guidelines. In their totality they speak for themselves with clarity. I find the application without merit and the same is ripe for dismissal. 20.But before I dismiss the application lets also hear what courts outside the jurisdiction of this country had to say about orders for review and no better court than the supreme court of India in the case of Aribam Tuleshwar Sharma v. Aribam Pishak Sharmal, speaking through Chinnappa Reddy, J., (SCC p. 390, para 3) 1 (1979) 4 SCC 389: AIR 1979 SC 1047 made a pertinent observation that is it has to be kept in view that an error apparent on the face of record must be such an error, which must strike one on mere looking at the record and would not require any long-drawn process of reasoning on points where there may conceivably be two opinions. 21.In Attorney General & O’rs v Boniface Byanyima, HCMA No. 1789 of 2000. the court citing Levi Outa v Uganda Transport Company [1995] HCB 340 held that the expression “mistake or error apparent on the face of record” refers to an evident error which does not require extraneous matter to show its incorrectness. It is an error so manifest and clear that no court would permit such an error to remain on the record. It may be an error of law, but law must be definite and capable of ascertainment.” 22.By the way this court has no powers to transfer the file to the magistrates court or any other court except to another small claims court. This is for the applicant to note vis a vis the conclusion in its submissions. 23.The wisdom flowing from jurisprudence on this subject is that no error can be said to be apparent on the face of the record if it is not manifest or self-evident and requires an examination or argument to establish it. In the instant case therefore, I find and hold that there is no error apparent on the face of the record. C. Conclusion and Disposition. 24.The application dated 24/6/26 is not merited and it is hereby dismissed in its entirety. 25.Since costs follow event, the claimant is awarded costs of the application assessed at Kshs. 5,000/= 26.Orders accordingly. DATED, DELIVERED AND SIGNED AT VOI LAW COURTS THIS..8TH DAY OF ..July..2026.F. M. MULAMAADJUDICATOR/RMIn the presence of:Court Assistant: - Dhidha Rhova Joseph .Ms. Orina for the Applicant.Ms. Mogaka H/B for Nyantika for the Claimant.