[2013] KEHC 5497 (KLR)
The court found that the applicant had not demonstrated any error apparent on the face of the record or discovery of new and important matter or evidence to warrant a review of the orders issued on 11th April, 2013. The application was brought under the court's original jurisdiction and not as an appellate court,...
Source-derived case information.
- Citation
- [2013] KEHC 5497 (KLR)
- Parties
- Applicant: Abdullahi M Adan & 5 Others; Respondent: Rashid Roba Adan
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 11 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Court Orders
- Outcome
- application dismissed with costs to the respondent
- Judges
- LN Gacheru
- Legal Topics
- Review of Orders, Stay of Execution, Restraining Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdullahi M Adan & 5 Others
Applicant
Rashid Roba Adan
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Court Orders
Legal Issues
- 1 Whether there is an error apparent on the face of the record to warrant review of the orders issued on 11/4/2013.
- 2 Whether there is discovery of new and important matter or evidence to justify review of the court's orders.
- 3 Whether the applicant is entitled to the restraining orders sought in the application.
Ratio Decidendi
The court found that the applicant had not demonstrated any error apparent on the face of the record or discovery of new and important matter or evidence to warrant a review of the orders issued on 11th April, 2013. The application was brought under the court's original jurisdiction and not as an appellate court, and the applicant had not sought stay of execution in the appropriate forum. The court held that the proper procedure would be for the applicant to file an application for stay of execution in the Magistrate's Court or in the relevant appeal, not by way of review in the High Court. Consequently, the application for review was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 29th April, 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ENIVIRONMENT & LAND DIVISION
ELC NO.11 OF 2013
ABDULLAHI M ADAN & 5 OTHERS......APPLICANT/DEFENDANT
VERSUS
RASHID ROBA ADAN............ RESPONDENT/PLAINTIFF
RULING:
This is a Notice of Motion dated 29th April, 2013 brought by Jaoko Alexander Advocate, brought under Section 1A, 1B, & 3 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules and all the enabling provisions of the Law.
The applicant has sought for these Orders, that the Court be pleased to review its orders made on 11th April, 2013 and in place thereof make an Order directing that the Notice of Motion Application dated 8th April, 2013 and filed on 11th April, 2013 be heard immediately on priority basis; that the Court do review its Orders made on 11th April, 2013 and in place thereof make an Order granting the Defendants/Applicants prayer No.2 on the Notice of Motion dated 8th April, 2013 and for costs of the application. The Applicant relied on the grounds on the face of the application and on the Supporting Affidavit of Jaoko Alexander (Advocate).
The application was opposed. The parties canvassed the application orally in Court. The application is hinged on Order 45 which Order reads as follows:-
“Any person considering himself aggrieved by a Decree or Order .............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 reasons, desires to obtain review of the Decree or Order , may apply for a review of Judgement to the Court which passed the Decree or made the Order without unreasonable delay”.
The applicant herein, filed this miscellaneous application No. 11 of 2013 on 11th April, 2013and sought for restraining Order pending the hearing and determination of the application inter-partes. The applicant did not seek for Stay of Execution pending Appeal. The said miscellaneous application was brought to Court in its original jurisdiction but not as an appellate Court. That is the reason why the Court ordered the applicant to seek stay of execution in the Magistrate Court. In the said miscellaneous application, the applicant had not even attached the Notice of Appeal.
The Court will concur with the Counsel for the Respondent that, there is no error apparent on the face of record to warrant review of the orders issued on 11/4/2013 by this Court.
If applicant has filed an appeal, then he can file an application for stay of execution in the said case. The prayer sought in miscellaneous application No. 11/2013, are restraining Orders and not stay of execution.
The Court finds that, there is no discovery of new and important matter or evidence herein to warrant this Court review its Orders of 11/4/2013. The applicant should instead file an application for Stay of Execution in Civil Appeal No. 189 of 2013, or before the same Magistrates Court.
The Court dismisses the Applicant’s application dated 29th April, 2013 with costs to the Respondent.
It is so ordered.
Dated, Signed and delivered at Nairobi this 19th day of July, 2013.
L .N. GACHERU
JUDGE
In the Presence of:-
.................................................For the Plaintiff
..................................................For the Defendant/Applicant
Anne: Court Clerk
L .N. GACHERU
JUDGE