[2004] KEHC 1667 (KLR)
The court held that it could not sit on appeal against the decision of another judge who granted leave to file suit out of time, especially in the absence of evidence that the judge was misled. The inherent power to set aside orders should be exercised by the judge who made the order. Since the applicant failed to...
Source-derived case information.
- Citation
- [2004] KEHC 1667 (KLR)
- Parties
- Applicant: Crysantus Muchiri Gicheru; Respondent: Ground Water Survey (K) Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 1034 of 2003
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Leave to File Suit Out of Time
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Extension of Time, Jurisdiction, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Crysantus Muchiri Gicheru
Applicant
Ground Water Survey (K) Limited
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Leave to File Suit Out of Time
Legal Issues
- 1 Whether the court has jurisdiction to grant leave to file suit out of time where the claim is founded on contract.
- 2 Whether the court was misled into granting leave to file suit out of time.
Ratio Decidendi
The court held that it could not sit on appeal against the decision of another judge who granted leave to file suit out of time, especially in the absence of evidence that the judge was misled. The inherent power to set aside orders should be exercised by the judge who made the order. Since the applicant failed to provide sufficient grounds or evidence to justify setting aside the leave, and as the leave had already been acted upon, the application was dismissed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the order granting leave to file suit out of time is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT AT NAIROBI
MISC. APPLICATION NO. 1034 OF 2003
CRYSANTHUS MUCHIRI GICHERU …………….. APPLICANT
VERSUS
GROUND WATER SURVEY (K) LIMITED ….. RESPONDENT
RULING
The applicant in this Chamber Summons dated 6th April 2004 seeks to set aside the Court’s order of 17th October 2003 in which the Respondent was granted leave to file suit out of time. The grounds in support of the application are that
1) The Court has no jurisdiction to grant leave to file suit out of time where the claim is founded on contract
2) That the Court was misled into granting the said leave.
The Respondent objects to the application and argues that leave having been granted the same cannot be challenged especially since it has been acted upon and complied with.
I have seen the order dated 17th October 2003 issued on 22nd October 2003. I note that the same was conditional upon the Respondent filing his suit within 30 days, in default of which the said leave would automatically lapse.
I cannot sit on appeal against the learned judge who found it fit and proper to grant the subject leave upon facts and/or arguments presented before him. No evidence has been presented before me to prove that the Learned Judge was “misled into granting the orders sought” and I see no good reason why I should reverse his Lordship’s order. Much as this court has inherent power to set aside its own orders, such power can only be properly exercised by the judge who made the order.
In the premises I refuse to allow this application and dismiss the same with costs to the Respondent.
Dated and Delivered at Nairobi this 24th day of September 2004.
M.G. Mugo
Ag. Judge
In the presence of:
J.M. Mugo & Company Advocates for the Applicant/Plaintiff - Gichimu
J.H. Ojiambo & Company Advocat es for the Defendant/Respondent - N/A