[2000] KEHC 490 (KLR)
The court held that the applicant's complaint regarding misapplication of the law does not constitute a ground for review under Order XLIV Rule 1 of the Civil Procedure Rules. The court further found that the application was filed after an unreasonable delay of 20 months from the date of the order sought to be...
Source-derived case information.
- Citation
- [2000] KEHC 490 (KLR)
- Parties
- Plaintiff: Fidelity Commercial Bank Ltd; Defendant: Vinay Shah
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 10 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Review of Dismissal Order
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Review of Court Orders, Hire Purchase Act, Misapplication of Law, Delay in Filing Applications
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fidelity Commercial Bank Ltd
Plaintiff
Vinay Shah
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the court can review its order of 24/7/1998 dismissing the plaintiff's suit under Order XLIV Rule 1 of the Civil Procedure Rules.
- 2 Whether misapplication of the law is a ground for review under Order XLIV Rule 1.
- 3 Whether the application for review was brought without unreasonable delay.
Ratio Decidendi
The court held that the applicant's complaint regarding misapplication of the law does not constitute a ground for review under Order XLIV Rule 1 of the Civil Procedure Rules. The court further found that the application was filed after an unreasonable delay of 20 months from the date of the order sought to be reviewed. Consequently, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI MILIMANI COMMERCIAL COURTS CIVIL CASE NO.10 OF 1998
FIDELITY COMMERCIAL BANK LTD...................................PLAINTIFF VERSUS VINAY SHAH........................................................................DEFENDANT
R U L I N G
This application seeks to review an order of this court made on 24/7/1998 which dismissed the plaintiff’s suit. The application is made under Order XLIV Rules, and 32, and Order L Rule 1 of the Civil Procedure Rules and is grounded on the following:-
(a) That the said ruling is void for being contrary to the provisions of the Hire Purchase Act, Cap.517.
(b) That the said ruling is void for being contrary to the law as obtaining is Kenya and as now more clearly set out and laid down in Diamond Trust Bank of Kenya Limited - and - Jaswinder Singh Enterprises, Civil Appeal Number 285 of 1998 (unreported).
(c) That the Defence filed herein and the application dated 23rd June 1998 made herein is a nullity in law as they are a complete misunderstanding and misinterpretation of the law.
It would appear from a careful reading of the grounds of the application and also from submissions by learned counsel for the applicant that the applicants major complaint against the order made on 24/7/1998 is that the learned Judge who made it misapplied the law relating to the Hire Purchase Act. That I think is why reference is made to the case of Diamond Trust Bank of Kenya Limited and Jaswinder Singh Enterprises (court of Appeal Civil Appeal No.285 of 1998). That issue is however not the type of the matter that Order 44 rule 1 contemplates. In my opinion a review is permitted only in the circumstances described in rule 1 of O. XLIV and misapplication of the law is not one of them. Indeed that, I think is the reason why, while arguing the application, learned counsel for the applicant made no reference to the matters mentioned in Order XLI rule 1.
The other reason why this application should fail is that there has been unreasonable delay in bringing it. The order complained of was made on 24/7/1998. This application was not filed until 16/3/2000. In my view a delay of 20 months is unreasonable.
For the above reasons I find that the application lacks merit and I dismiss it with costs.
Dated at Nairobi this 8th day of December 2000.
T. MBALUTO
JUDGE