[2003] KEHC 610 (KLR)
The court found that the defendant failed to establish any of the statutory grounds for review under Order XLIV Rule 1(1) of the Civil Procedure Rules, as there was no discovery of new evidence, no error apparent on the face of the record, and no sufficient reason provided. The application for review was also not...
Source-derived case information.
- Citation
- [2003] KEHC 610 (KLR)
- Parties
- Plaintiff: Cheruiyot; Defendant: Kemei
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- ? 70 of 1996
- Procedural Posture
- Civil Case / Ruling on Applications for Review and Stay
- Outcome
- applications dismissed with costs to the plaintiff
- Legal Topics
- Review of Judgment, Stay of Execution, Transfer of Suit, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cheruiyot
Plaintiff
Kemei
Defendant
Procedural Posture
Civil Case / Ruling on Applications for Review and Stay
Legal Issues
- 1 Whether the defendant established grounds for review of the court's judgment under Order XLIV Rule 1(1) of the Civil Procedure Rules.
- 2 Whether the application for review was brought without unreasonable delay.
- 3 Whether the transfer of the suit from the lower court was irregular or void for want of jurisdiction.
Ratio Decidendi
The court found that the defendant failed to establish any of the statutory grounds for review under Order XLIV Rule 1(1) of the Civil Procedure Rules, as there was no discovery of new evidence, no error apparent on the face of the record, and no sufficient reason provided. The application for review was also not brought without unreasonable delay, as nearly four months had elapsed since the judgment. Furthermore, the transfer of the suit from the lower court was effected by consent in 1996 and had not been challenged until the present application, undermining the defendant's argument regarding jurisdiction. Consequently, both the application for review and the application for stay were...
Court Disposition
applications dismissed with costs to the plaintiff
Orders
- The defendant's applications dated August 28, 2002 and August 30, 2002 are dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
Cheruiyot v Kemei
REPUBLIC OF KENYA
High Court, at Kericho
civ case 70 of 96
July 29, 2003, Alnashir Visram J delivered the following Ruling.
There are two applications before the Court. One is dated August 28, 2002 and is stated to be brought under Sections 3, 3A and 80 of the Civil Procedure Act (Cap 21) and Order XXII Rules 22, 24 and 25, Order XLIV Rules 1, 2 and 3 of the Civil Procedure Rules (hereinafter referred to as “the Rules”) together with all enabling provisions of the law. In it, the Defendant seeks in the main the following order:
“2. THAT this Honourable Court do review its judgment and decree in this suit and set aside the said Judgment and strike out the Plaintiff’s suit with costs to the defendant.” I will hereinafter refer to this application as “the Application for Review”. The second application is dated August 30, 2002. It is stated to be brought under Sections 3 and 3A of Cap 21 and Order XXI Rules 22 and 25, Order XLVII Rule 5(b) (x) of the Rules and all other enabling provisions of the law. In it the Defendant seeks in pertinent part, the following order:
“2. THAT there be a stay of execution of the judgment and decree pending the hearing and determination of the defendant’s … application for revie w of the said judgment and decree and (sic) Kericho High Court Civil Suit No. 39 of 2002 (O.S).”
I will hereinafter refer to this application as “the application for stay.” Although Mr. Matwere for the Defendant informed the Court that both applications were coming up for hearing, he limited his Submissions to the Application for Review and I take it that he had abandoned the application for stay. Even if I were wrong in this respect, I have serious doubts whether this Court is empowered to stay the execution of the decree herein merely because the Defendant has filed another action against the Plaintiff.
The only other view that can be taken of the application for stay is that the Defendant sought stay of the execution of the decree herein pending the hearing and determination of the Application for Review. This was dealt with by the Deputy Registrar of this Court on March 12, 2003.
In his Submissions, Mr. Matwere referred the Court to paragraphs 2, 3, 6 and 9 of the Defendant’s “supportive” Affidavit sworn August 28, 2002 and argued that the manner in which this suit was transferred to this Court from the lower Court was irregular as there was no jurisdiction to file the same in the lower Court. The action was void ab initio and incapable of transfer, he said.
He referred the Court to the case of Kangenyi v. Musiramo & Ano[1968] E.A. 45. He argued that that fact was not brought to the attention of the Court. He further argued that at the time of the transfer the suit was time barred. I agree with Mr. Karigo that these are not grounds upon which this Court may review its judgment. Mr. Karigo said before me, and it was not controverted by Mr. Matwere, that the suit was transferred in 1996 by consent and no challenge to the transfer was raised ever since. To succeed on an application for review, it is imperative that the Applicant must show“the discovery of new and important matter or evidence which, after due 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 on account of some mistake or error apparent on the face of the record, or for any other sufficient reason”(see Order XLIV Rule 1(1) of the Rules) The Defendant did not establish any of these matters. The same Rule requires that an application for review must be brought “without unreasonable delay.” In this case, the Judgment sought to be reviewed was delivered on May 3, 2002 yet the application was not brought until August 28, 2002. This was after close to four months. The Defendant has not told this Court why it took him so long to make the application for review. In any event, the defendant did not show this Court how the lower Court lacked jurisdiction in the matter in the first instance.
I, therefore, dismiss the Defendant’s applications dated August 28, 2002 and august 30, 2002 with costs.
29 Jul 2003
A R Visram J