[2003] KEHC 630 (KLR)
The application was dismissed because the applicant failed to annex the order sought to be reviewed, as required by law. The court emphasized that it is the applicant's duty to draw up and attach the relevant order or decree. Furthermore, the applicant did not demonstrate the discovery of any new and important...
Source-derived case information.
- Citation
- [2003] KEHC 630 (KLR)
- Parties
- Plaintiff: Finshermans Leisure Inn Ltd; Plaintiff: Leisure Trading; Plaintiff: Leisure Carhire & Tours Safaris Ltd; Defendant: Giro Commercial Bank Ltd.; Defendant: G.A. Datoo & Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 513 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Review
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Review of Orders, Abuse of Process, Affidavit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Finshermans Leisure Inn Ltd
Plaintiff
Leisure Trading
Plaintiff
Leisure Carhire & Tours Safaris Ltd
Plaintiff
Giro Commercial Bank Ltd.
Defendant
G.A. Datoo & Co. Ltd.
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review
Legal Issues
- 1 Whether the application for review was competent in the absence of the order sought to be reviewed.
- 2 Whether the applicant demonstrated discovery of new and important matter or evidence, or any error apparent on the face of the record.
Ratio Decidendi
The application was dismissed because the applicant failed to annex the order sought to be reviewed, as required by law. The court emphasized that it is the applicant's duty to draw up and attach the relevant order or decree. Furthermore, the applicant did not demonstrate the discovery of any new and important matter or evidence, nor did it show any error apparent on the face of the record or any other sufficient reason for review. The court found the application to be an abuse of process, intended merely to delay execution of the judgment, and awarded costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL CASE NO. 513 OF 2001
FINSHERMANS LEISURE INN LTD …………………… 1ST PLAINTIFF
LEISURE TRADING ……………………………………... 2ND PLAINTIFF
LEISURE CARHIRE & TOURS SAFARIS LTD………… 3RD PLAINTIFF
VERSUS
GIRO COMMERCIAL BANK LTD. ……………….….. 1ST DEFENDANT
G.A. DATOO & CO. LTD. …………………………….. 2ND DEFENDANT
R U L I N G
This application is clearly an abuse of the Court Process. It is incompetent and has no basis whatsoever. It is an attempt by the applicant to impose its demands that he pays the debt due by installments of KSh.50,000 (as is in the application) or KSh.75,000/- (as I am now being told from the bar) notwithstanding the court’s decision. The following are the reasons why I do feel the application cannot succeed.
First no order which I am being asked to review has been annexed.
This is now trite law that the court can only review an order or a decree (in case of a judgment). The party seeking a review must show that it is aggrieved by an order or a decree (see Order 44 Rule 1). It is in law the duty of the party seeking a review to draw up the same order or decree and annex it to the application. This is the holding in the case of Gulamhussein Mulla Jivanji & Another vs. Ebrahim Mulla Jivanji & Anothe r (1930) EACA 4. It was held there as follows:
“That it is the duty of a party who wishes to appeal against or apply for review of a decree or order to move the court to draw up and issue the final decree or order”
Secondly, there is nothing shown by the applicant that a new and important matter or evidence has been discovered. The Affidavit which was rejected was sworn by agent of the Applicant. It was the duty of the applicant and its advocate to ensure that they filed a valid affidavit. There is no mistake or error shown on the face of the record and there is no any other reason shown for the application.
In my mind, this application was clearly brought to buy time and this is sad to say the least. I do feel with every respect that the Applicant must have been ill advised on this matter. I will say no more but I do hope I will not see such applications in future. Already it has been used to buy some time and that is bad enough.
Application is dismissed with costs to the Respondent. Orders accordingly.
Dated and Delivered at Mombasa this 26th Day of March, 2003.
J.W. ONYANGO OTIENO
JUDGE