[2005] KEHC 597 (KLR)
The court found that its previous order striking out the suit was based on a misapprehension of what was to be struck out. While the application for stay of proceedings in the lower court was unsustainable, the suit itself disclosed a good cause of action and was sustainable. The error was not one of law but of fact...
Source-derived case information.
- Citation
- [2005] KEHC 597 (KLR)
- Parties
- Plaintiff: Daniel Waithaka Njora; Defendant: Titus Kinyua Nyawira; Defendant: Roysambu Housing Co-operative Society Ltd; Defendant: Commissioner of Lands
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 392 of 2005
- Procedural Posture
- Civil Case / Ruling on Application for Review of Order Striking Out Suit
- Outcome
- Order varied; application dismissed with costs to the respondent.
- Legal Topics
- Review of Court Orders, Error on Face of Record, Striking Out Suits
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Waithaka Njora
Plaintiff
Titus Kinyua Nyawira
Defendant
Roysambu Housing Co-operative Society Ltd
Defendant
Commissioner of Lands
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Order Striking Out Suit
Legal Issues
- 1 Whether there was an error on the face of the record justifying review of the order striking out the suit.
- 2 Whether the suit disclosed a cause of action and was sustainable.
- 3 Whether the application for review was brought with undue delay.
Ratio Decidendi
The court found that its previous order striking out the suit was based on a misapprehension of what was to be struck out. While the application for stay of proceedings in the lower court was unsustainable, the suit itself disclosed a good cause of action and was sustainable. The error was not one of law but of fact as to the proper subject of the order. Consequently, the court held that it was unjust to strike out the suit and varied its previous order to dismiss only the application with costs, rather than striking out the entire suit.
Court Disposition
Order varied; application dismissed with costs to the respondent.
Orders
- The previous order striking out the suit is varied to an order dismissing the application with costs.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Case 392 of 2005
DANIEL WAITHAKA NJORA ………………....….………..…………….PLAINTIFF
VERSUS
TITUS KINYUA NYAWIRA …………………..…..……...…...……1ST DEFENDANT
ROYSAMBU HOUSING CO-OPERATIVE SOCIETY LTD…....2ND DEFENDANT
COMMISSIONER OF LANDS ……...…………………….……....3RD DEFENDANT
RULING
By his Notice of Motion the applicant seeks an order that I review the order I made striking out this suit on the 26. 4.2005 on the basis that there is an error on the face of the record.
Mr. Kairaria for the Applicant relied on the grounds in his application and the Applicant’s replying affidavit. The Applicant at the time of filing his Plaint herein sought interim orders to stay proceedings in Milimani CM.CC. No.7365 of 2002 pending the hearing of this suit.
The said proceedings had been struck out and there was nothing therefore to stay. What was intended according to the Applicant was a stay of the order of taxation of the costs.
The ruling I made on the application was;
“The Applicant has two choices either to appeal against the order of the lower court or bring a Judicial Review application to quash the lower court’s order. This suit is unsustainable and I strike it out with costs to Respondent.”
It is clear, however, that the suit brought is sustainable as it discloses a good cause of action. What was not sustainable was the application for stay of the proceedings in the lower court.
He relied on the case of Reginav Patents Appeal Tribunal {1962} 2 QB page 647 where it was held that “the court was entitled to look not only at the tribunal’s decision but also at the application which formed the basis of that decision.
Mr. Muriithi for the Respondent submitted that the application had been brought with undue delay having been brought some two months or so after I made my order and that there was no error on the face of the record. He relied on the case of Housing Finance Company of Kenya Ltd. v Prudential Dry Cleaners Ltd. cc. No.774 of 1999 where it was held an error on a point of law does not enable a litigant to seek a review of an order but appeal to the Court of Appeal in respect of whether the trial judge’s interpretation was correct or not.
My remark that the Applicant had two choices clearly related to the Applicant’s remedy against the order of the striking out of the suit in lower court and not the application for a stay of proceedings. What was intended was that the application be struck out as there was nothing to stay.
My decision was not therefore based on an error of law but on an error as to what was to be struck out. It was unjust to strike out the suit. In the event I vary my order to read “dismiss the application with costs” instead of strike out the suit. The costs go to the Respondent.
Dated and delivered at Nairobi this 23rd day of November, 2005.
P. J. RANSLEY
JUDGE