[2000] KEHC 478 (KLR)
The court found that the defendants failed to bring their application within the requirements of Order XLIV rule 1 of the Civil Procedure Rules, as they did not demonstrate discovery of new evidence, mistake, or any sufficient reason. The grounds advanced were either previously determined or did not meet the...
Source-derived case information.
- Citation
- [2000] KEHC 478 (KLR)
- Parties
- Plaintiff: Gemicies International Limited; Defendant: Ephapharus Waweru Muthoko & 4 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 166 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Review and Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, Stay of Execution, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gemicies International Limited
Plaintiff
Ephapharus Waweru Muthoko & 4 Others
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether the defendants have established grounds for review under Order XLIV rule 1 of the Civil Procedure Rules.
- 2 Whether the court can grant a stay of execution and set aside the judgment previously entered.
- 3 Whether the defendants were properly served with the hearing notice.
Ratio Decidendi
The court found that the defendants failed to bring their application within the requirements of Order XLIV rule 1 of the Civil Procedure Rules, as they did not demonstrate discovery of new evidence, mistake, or any sufficient reason. The grounds advanced were either previously determined or did not meet the threshold for review. The court further held that it could not revisit issues already decided in its earlier ruling. Consequently, the application for review, stay of execution, and setting aside of judgment was dismissed as lacking substance.
Court Disposition
application dismissed with costs
Orders
- The application for review, stay of execution, and setting aside of judgment is dismissed with costs to the plaintiff.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE 166 OF 1998
GEMICIES INTERNATIONAL LIMITED V EPHAPHARUS WAWERU MUTHOKO & 4 OTHERS
T Mbaluto, Judge
August 25, 2000
T Mbaluto, Judge delivered the following ruling.
This application has been brought by the defendants for an order to review a ruling made by this court on May 19, 2000. By the same application, the defendants also seek to stay execution of a decree and to set aside the judgment entered in this matter on November 29, 1999. The application is supported by an affidavit sworn on May 26, 2000 by Ephapharus Waweru Muthoko, the 1st defendant in the suit and the grounds upon which it is based are:-
1. That defendants were never served with the Hearing Notice. 2. That the defendants have a good defence and counter-claims with high probabilities of success. 3. That it is in the interest of Justice that the defendants be given an opportunity to be heard and the case decided on merits. 4. That the defendants, their children and parents are likely to suffer irreparable loss if the plaintiff goes ahead and executes the decree upon Flora Nursery and Pre-primary School. 5. That if stay is not granted this application would be rendered nugatory. 6. That the plaintiff does not stand to suffer any loss or damage if the application herein is granted. 7. That it is in the interest of justice that the defendants be allowed to state and prove their case.
In an application for review under Order XLIV rule 1 of the Civil Procedure Rules, the applicant is required to establish the following:- (a) discovery of new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the order was made; or (b) on account of some mistake or error apparent on the face of the record, or for any other sufficient reasons.
A careful look at the grounds of the application listed above clearly shows that no attempt whatsoever has been made to bring the application within the purview of Order XLIV rule 1. As to the prayers for stay of execution of the decree and setting aside of the judgment, those issues were the subject of the ruling of this court made on May 19, 2000 and consequently, the court cannot revisit the same issues again. For the above reasons, I am of the view that this application has no substance and ought not to be allowed. It is dismissed with costs.