Whether the Appellant has demonstrated a case for review of the judgment dated 03.02.2022
6.The court has considered the material and submissions on record on this issue. It is evident from the Appellants’ application that they are seeking review on account of an alleged error or mistake of law apparent on the face of the record under Order 45 rule 1(1) of the Rules. The said subrule stipulates as follows:
8.So, what is the Appellant’s demonstration of the existence of an error apparent on the face of the record in this matter? In their grounds on the face of the motion they contended that there was a ‘grave’ misapprehension of the law on the part of the court in its application of Section 129(1) and 129(2) of EMCA which resulted in a miscarriage of justice. In paragraph 4 of the supporting affidavit, the Appellants’ advocate D.W. Mbugua swore as follows:
9.It is thus clear that the Appellants were aggrieved by what they considered to be an erroneous interpretation and application of the law by the court in its judgment dated 03.02.2022. It was their view that the court erred in law in holding that their case fell within Section 129(1) of EMCA. It was also their view that the correct legal interpretation is that their case fell squarely within Section 129(2) of EMCA. That is the reason why they stated in their application that the court ‘gravely misapprehended’ the law and as a result arrived at an erroneous decision.
10.The court is far from satisfied that the Appellants have demonstrated any grounds for review known to the law. It is apparent from the material on record that the Appellants filed the appeal before this court because they were aggrieved by the decision of NET which held that their appeal was time-barred under Section 129(1) of EMCA. The Appellants were of the view that their appeal fell under Section 129(2) of EMCA hence it was not time barred. This court, sitting as an appellate court, considered the appeal and held that NET was right in holding that a challenge to the grant of a licence was a matter which fell within Section 129(1)(a) of EMCA.
11.In paragraph 18 of the judgment this court held as follows:
12.The court concurs with the 2nd Respondent that the Appellants are simply rehashing their argument at the appellate stage and that they are simply asking the court to sit on appeal over its own judgment. It is well settled in law that a review cannot be entertained simply because the court misinterpreted, misconstrued or misapprehended the law. It matters not that other judges may have taken a different view on the matter. And a review cannot be granted simply because the aggrieved party has no avenue for a further appeal. In the instant case, the court finds absolutely no merit in the application for review.