Paul v Mutisya & another (Civil Case E043 of 2020) [2026] KEMC 282 (KLR)
The bottom line
#A Kenyan magistrate dismissed a review application, confirming that review cannot be used to fix problems that should have been raised during the trial itself.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there are sufficient grounds to warrant a review of the judgment herein
- 2.Whether the 2nd defendant/applicant is entitled to the reliefs sought
Key legal issues
#Whether failure to consider evidence qualifies as an error apparent on the face of the record
Conditions precedent must be satisfied: the evidence was on record, material to the outcome, the judgment completely silent on it, and the omission plain and patent rather than debatable
The court distilled the requirements from Order 45 rule 1 and the authorities. The applicant did not even specify which limb of Order 45(1)(b) he relied upon, and his complaints about service and the wrong accident vehicle did not fit any limb. The issue of which vehicle caused the accident was an issue of evidence that should have been canvassed at the hearing.
Whether alleged non-service by the applicant defeats the proceedings where an advocate was on record
Non-service is a ground for setting aside default judgment, not review; where an advocate on record (usually appointed by the insurer) entered appearance and participated, authority is presumed unless the contrary is proved
A firm of advocates entered appearance, filed a defence and cross-examined the plaintiff's witnesses. The applicant did not deny instructing them until supplementary submissions, which cannot substitute for evidence. The court set out four factors the applicant had to establish to displace the presumption of authority and found none established.
Whether the applicant's complaint of being wrongly sued over the wrong motor vehicle warrants review and expungement of his name
No; the wrong accident vehicle is not new and important evidence discoverable only with due diligence, and the claim is a defence on the merits to be raised at hearing or on appeal, not by review
The court noted the issue was known to the applicant, ought to have been raised in the defence, and PW2 was cross-examined on it by the former counsel. The court observed it was probable the plaintiff sued the wrong vehicle, but striking out the name post-judgment would leave the court unable to proceed without re-writing the judgment or starting afresh. The failure to attend court was not sufficiently explained.
Legal principles established
#- Non-service of summons and pleadings is not a ground for review under Order 45 rule 1; it is a ground for setting aside default judgment
- Submissions cannot take the place of evidence
- Where an insurer-appointed advocate entered appearance, filed a defence and participated in proceedings, the court will generally presume authority to act unless the contrary is proved
- An error apparent on the face of the record must be plain and patent, self-evident and not debatable, and failure to consider evidence qualifies only if the evidence was on record, material, and the judgment completely silent on it
- Review is not meant to re-hear the merits or allow a party to argue the court reached a wrong conclusion; a wrongly-sued defendant's remedy lies in setting aside or appeal, not review
Court orders
#- 1.The 2nd defendant's application dated 13/11/2025 for raising of attachment, review of the judgment/decree and expungement of the 2nd defendant's name is dismissed
- 2.Costs of the application awarded to the plaintiff
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 80 of the Civil Procedure Act; Order 45 rule 1, Order 22 rules 5, 52 and 53 of the Civil Procedure Rules
Relief refused
#Raising of the attachment of motor vehicle registration number KBW 338Q
The application underpinning the relief was found devoid of merit and dismissed in its entirety
Review of the judgment/decree issued on 4/10/2023 and expungement of the 2nd defendant's name from the suit
Non-service and the wrong accident vehicle are not grounds for review under Order 45 rule 1; the grievances amounted to defences on the merits requiring setting aside or appeal, and the 2nd defendant did not meet the review threshold
Costs
The application was dismissed with costs to the plaintiff.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Consequently, I proceed to dismiss the application with costs to the plaintifi.
the 2nd defendant has not met the threshold under Order 45 rule 1 of the Civil Procedure Rules.
Non-service of summons and pleadings is not a ground for review as envisaged by Order 45 rule 1 of the Civil Procedure Rules. It is a ground for setting aside default judgment.
Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid.
the court will generally presume that the advocate had authority to act unless the contrary is proved
Review is not meant to re-hear the merits of the case or allow a party to argue that the court reached a wrong conclusion, particularly where there is no new and important evidence.
an error apparent on the face of the record is not one which is to be established by a long drawn process of reasoning or on points where there could possibly be two opinions
Issues in the judgment
#The judgment repeatedly mislabels the applicant as the 1st defendant on the face of the application grounds
Paragraph 17 refers to 'the plaintifi's application' although the application was brought by the 2nd defendant
The case number and station of the suit are not stated anywhere in the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Paul v Mutisya & another (Civil Case E043 of 2020) [2026] KEMC 282 (KLR)", Case Analysis (2026). . Source: https://new.kenyalaw.org/akn/ke/judgment/kemc/2026/282/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.