[2003] KEHC 210 (KLR)
The court found that the application for review was incompetent as it was brought under provisions that do not exist in the Civil Procedure Act but rather in the Civil Procedure Rules. Furthermore, the original application was dismissed not for non-attendance but for lack of merit, as no proper explanation was given...
Source-derived case information.
- Citation
- [2003] KEHC 210 (KLR)
- Parties
- Applicant: Earnest Ngirichi Mugaa; Respondent: Anna Kariuki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Children Miscellaneous Application 245 of 1997
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Dismissal Order
- Outcome
- application dismissed
- Judges
- GG Okwengu
- Legal Topics
- Review of Court Orders, Dismissal of Applications, Procedural Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Earnest Ngirichi Mugaa
Applicant
Anna Kariuki
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the application for review is competent under the cited provisions.
- 2 Whether sufficient cause has been shown to justify review or setting aside of the dismissal order.
- 3 Whether delay in filing and prosecuting the review application is excusable.
Ratio Decidendi
The court found that the application for review was incompetent as it was brought under provisions that do not exist in the Civil Procedure Act but rather in the Civil Procedure Rules. Furthermore, the original application was dismissed not for non-attendance but for lack of merit, as no proper explanation was given for the delay in filing the appeal and prosecuting the application for leave to appeal out of time. The applicant failed to provide any new grounds or sufficient cause to justify review or setting aside of the dismissal order. Additionally, there was an inordinate and unexplained delay in filing and prosecuting the review application. For these reasons, the court dismissed the...
Court Disposition
application dismissed
Orders
- The application dated 28th August 2001 is dismissed as being incompetent and lacking merit.
- Costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPULIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
HIGH COURT MISC. CASE 245 OF 1997
EARNEST NGIRICHI MUGAA ……………………………………… APPLICANT
VERSUS
ANNA KARIUKI ……………………………………………………. RESPONDENT
R U L I N G
Earnest Ngirichi Mugaa the Applicant herein applies under order XLIV rules 1(1)(a) and order L rule 1 of the civil Procedure Act for review of the order of dismissal made on 21st October 1997. The application is supported by an affidavit sworn by the advocate for the Applicant in which he explains that he arrived in court late after the application was dealt with because his motor vehicle had a puncture. The application is opposed by the Respondent who has filed a replying affidavit.
First and foremost it is evident that the Notice of motion is incompetent as order XLIV Rule 1 (1) (a) and order L rule 1 do not exist in the Civil Procedure Act but in the Civil Procedure Rules. Secondly it is apparent from the court record that the application dated 21st October 1997 was not dismissed for non attendance but was dismissed as it had no merit no proper explanation having been given for the delay in filing the appeal and the delay in prosecuting the application for leave to appeal out of time. No new grounds or sufficient cause has been given to the court as to justify the review or setting aside of the order of dismissal as the presence of the advocate would not have made any difference in view of the reasons given for the dismissal.
Finally there has again been an inordinate delay in filing this application for review and in prosecuting the same and no explanation has been given for this delay.
For all the aforestated reasons the application dated 28th August 2001 is dismissed as being incompetent and lacking merit. Costs to the Respondent.
Dated signed and delivered at Nyeri in open court this 5th day of December 2003.
H. M. OKWENGU
JUDGE