8.The respondent submits that there was no order in April capable of being vacated. Further the matter was conducted interpartes, hence the court was functus officio. It wads their case that this APPEAL was dismissed on a day other than the day indicated. They rely on the case of Muthoni Nduati Vs Wanyoike Kamau & 5 Others  eKLR, where Justice stated as doth:My reading of the foregoing decision is that if a trial court deals with an issue which is not properly before it, that would be wrong.”
9.They rely on the case of Otieno, Ragot & Company Advocates v National Bank of Kenya Limited  eKLR, where Asike-makhandia, Kiage & Odek, JJ.A stated as doth: -
10.The applicable law for grant of review is Section 80 of the Civil Procedure Act which provides inter alia:-Any person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.Whereas order 45 rule 1 of the Civil Procure Rules is in terms:-(1)Any person considering himself aggrieved—(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or(b)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.
11.The applicant did not file submissions. They had sought that the order made on 13.4.2023 be set aside. I made no order on the said date. The applicant had field a replying affidavit where the last action was 2018.
12.Nevertheless, I perused the court file and noted that the last action, in terms of letters was 4 years ago. The Decree has never been filed. Truly there was no action. On the file. I had to safe the appeal from the ignominy of its own laches.
13.In the case of Thathini Development Company Limited v Mombasa Water & Sewerage Company & another  eKLR, Hon. Justice L.L. Naikuni, stated as doth: -
14.In the case of John Gilbert Ouma v Kenya Ferry Services Limited  eKLR, the court stated as doth: -
15.The Supreme Court of Kenya in the case of Raila Odinga & 2 Others v Independent Electoral & Boundaries Commission & 3 Others  eKLR, cited with approval an excerpt from an article by Daniel Malan Pretorius entitled, “The Origins of the Functus Officio Doctrine, with Special Reference to its Application in Administrative Law” (2005) 122 SALJ 832 which reads: -In this matter, I exercised my discretion after hearing parties. The matter was fully heard and I made up my mind. However wrong or right I was, it is not my duty to place a seal of approval. I had done my work and retired. In latin, they call it functus officio. The order made on 6/7/2023, can only or could only be challenged on Appeal.
16.The Court proceeded inter partes. The court, aware of all facts came to a decision. That decision may lack wisdom. However, that is all only a senior bench can infuse wisdom.
17.Exercise of discretion is not a ground for review. It is a ground for appeal, if the discretion is capricious and injudicious. In the case of Parliamentary Service Commission v Martin Nyaga Wambora & others  eKLRThe supreme court in reviewing its review jurisdiction, which basically is ‘an appeal within” the supreme court, excuse my tautology, stated as doth:
18.What the Applicant is seeking is a second bite on the cherry. At this rate, where parties come back for me to sit on Appeal from my own decision the Court of Appeal will be rendered redundant. Parties should gather courage and appeal decisions that they think were erroneous. Therefore, I do not find any merit in the application dated [wrongly dated 31/6/2023). The same is dismissed with costs of Kshs. 10,000/=.