Amudavi v Invest and Grow Sacco Ltd (Civil Appeal E408 of 2021)  KEHC 1292 (KLR) (Civ) (24 February 2023) (Ruling)
Neutral citation:  KEHC 1292 (KLR)
Republic of Kenya
Civil Appeal E408 of 2021
JK Sergon, J
February 24, 2023
Wycliffe Shivachi Amudavi
Invest and Grow Sacco Ltd
1.The respondent herein has brought the Notice of Motion dated 2nd September, 2022 supported by the grounds laid out on its face and the facts stated in the affidavit of Peter Vuhya, the Chief Executive Officer of the respondent. The respondent sought for the following orders:i.Spent.ii.Spent.iii.Spent.iv.That the decretal sum be deposited in a joint interest earning account in the names of the Advocates for the applicant and the respondent.v.That the judgment of this Honourable Court delivered on 17th June, 2022 and the decree dated 8th July, 2022 be reviewed.vi.That costs of the application be provided for.
2.The appellant swore a replying affidavit on 3rd October, 2022 to resist the Motion.
3.At the interparties hearing of the instant Motion, this court gave directions for the parties to file and exchange written submissions.
4.I have considered the grounds set out on the face of the Motion together with the facts deponed in the affidavits supporting and opposing the Motion and the rival submissions plus the authorities cited in reliance thereto.
5.A brief background of the matter is that the appellant instituted the present appeal to challenge the dismissal order made by the Cooperative Tribunal (“the Tribunal”) on 9th April, 2020 against the statement of claim dated 8th August, 2018 wherein the appellant sought for reliefs in the nature of a refund of the sums of Kshs.320,000/= and Kshs.160,000/= respectively, and general damages, together costs of the suit and interest thereon.
6.Upon hearing the parties on the appeal, this court vide the judgment delivered on 17th June, 2022 allowed the appeal thereby setting aside the aforementioned decision by the Tribunal and substituting it with an order entering judgment in favor of the appellant and against the respondent, as prayed in the statement of claim.
7.The respondent is now seeking the substantive order for a review of the above judgment through the instant Motion, as well as an order for deposit of the decretal sum.
8.To support the order for review sought, the respondent states and submits that there is a mistake/error apparent on the face of the record since the loan shares which constituted the subject matter of the claim before the Tribunal had been termed as settled and hence the respondent cannot be directed to refund the appellant the sum of Kshs.320,000/= which was sought in the claim.
9.In response, the appellant states and submits that the facts being deponed in the supporting affidavit are untrue and constitute a misrepresentation of the actual facts.
10.According to the appellant, there is no error apparent on the face of the record to warrant a review of the judgment on appeal, citing the case of Republic v Advocates Disciplinary Tribunal Exparte Apollo Mboya  eKLR where the court held that:
11.Consequently, the appellant urges this court to dismiss the Motion with costs.
12.The germane principles to guide this court in deciding whether to review its earlier ruling are found under Order 45 of the Civil Procedure Rules, 2010 and reaffirmed under Section 80 of the Civil Procedure Act Cap. 21 Laws of Kenya, cited in the submissions by the respondent, and set out in the manner below:
13.The following are the instances in which a court can review a decision already in place:a.the discovery of new and important matter or evidence, orb.some mistake or error apparent on the face of the record, orc.any other sufficient reason.
14.From my study of the instant Motion, it is clear that the respondent has come under the principle of “error apparent on the face of the record.”
15.The Court of Appeal in the case of National Bank of Kenya Limited v Ndungu Njau  eKLR cited in the respondent’s submissions had the following to say regarding an error on the face of the record:
16.From my consideration of the explanations given by the respondent to support its argument that there is an error apparent on the face of the record, I am of the view that the purported error in the present instance cannot be termed as being so self-evident as to not require further arguments or elaborations.
17.In my view, it is apparent that the respondent is essentially asking this court to sit on appeal against its own decision, under the guise of an apparent error. It is noteworthy that an order for review is distinguishable from an appeal and the circumstances under which a review can be sought and granted are clear-cut, and have been set out hereinabove.
18.In my reasoning above, I am supported by the above-cited decision by the Court of Appeal in the case of National Bank ofKenya Limited (supra) as well as the case of Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya eKLR appearing in the submissions by the appellant, where the court aptly rendered itself thus:
19.In view of all the foregoing circumstances, I am not satisfied that there is any error apparent on the face of the judgment delivered on 17th June, 2022 which would warrant a review of the same. Upon arriving at this decision, I see no reason to consider the second order sought concerning the deposit of the decretal sum in a joint interest earning account.
20.The upshot therefore is that the Notice of Motion dated 2nd September, 2022 is found to be without merit. It is dismissed with costs to the appellant.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 24TH DAY OF FEBRUARY, 2023..............................J. K. SERGONJUDGEIn the presence of:..................... for the Appellant..................... for the Respondent