[2010] KEHC 2312 (KLR)

[2010] KEHC 2312 (KLR)

The court held that the grounds advanced by the applicant, including alleged failure to consider the original judgment, errors in the appellate judgment, and purported illegality of the award, are not grounds for review under Order XLIV of the Civil Procedure Rules. Instead, these are matters that should be raised on appeal. The court emphasized that review is only available for errors apparent on the face of the record, discovery of new evidence, or other sufficient cause, and only where no appeal is allowed or pending. Since the application sought to review an appellate judgment and did not demonstrate any of the prescribed grounds for review, it was misconceived and incompetent. The...

Citation
[2010] KEHC 2312 (KLR)
Parties
Appellant: Eugenio Kithinji; Respondent: John Gitonga
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
28 May 2010
Case Number
Civil Appeal 39 of 1997
Procedural Posture
Civil Appeal / Ruling on Application for Review of Appellate Judgment
Outcome
application dismissed with costs to the respondent
Judges
MM Kasango
Legal Topics
Review of Judgment, Error on Face of Record, Grounds for Review, Appeal Vs Review, Civil Procedure Rules
Source Language
English
Civil Procedure Review of Judgment Error on Face of Record Grounds for Review Appeal Vs Review Civil Procedure Rules

Case Brief

Summary, issues, holding and outcome

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Parties

Eugenio Kithinji

Appellant

John Gitonga

Respondent

Procedural Posture

Civil Appeal / Ruling on Application for Review of Appellate Judgment

Legal Issues

  1. 1 Whether the application for review of the appellate judgment is competent under Order XLIV of the Civil Procedure Rules.
  2. 2 Whether the alleged errors constitute errors apparent on the face of the record sufficient to permit review.
  3. 3 Whether the grounds advanced are proper for review or are matters for appeal.

Ratio Decidendi

The court held that the grounds advanced by the applicant, including alleged failure to consider the original judgment, errors in the appellate judgment, and purported illegality of the award, are not grounds for review under Order XLIV of the Civil Procedure Rules. Instead, these are matters that should be raised on appeal. The court emphasized that review is only available for errors apparent on the face of the record, discovery of new evidence, or other sufficient cause, and only where no appeal is allowed or pending. Since the application sought to review an appellate judgment and did not demonstrate any of the prescribed grounds for review, it was misconceived and incompetent. The...

Court Disposition

application dismissed with costs to the respondent

Orders

  • The applicant's Amended Notice of Motion dated 8th April 2005 and 28th March 2007 is dismissed with costs to the respondent.