[2008] KEHC 3702 (KLR)
The court held that it is settled law that a court cannot review its own determination made on points of law; such matters are properly the subject of an appeal. The applicant's grounds for review were based on alleged errors of law and jurisdiction, which do not fall within the scope of review under the Civil...
Source-derived case information.
- Citation
- [2008] KEHC 3702 (KLR)
- Parties
- Plaintiff: George Gikubu; Defendant: Housing Finance (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1203 of 2006
- Procedural Posture
- Civil Case / Ruling on Application for Review
- Outcome
- application dismissed with costs
- Judges
- KH Rawal
- Legal Topics
- Review of Court Orders, Jurisdiction of Court, Preliminary Objection, Unregistered Conveyance, Withdrawal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gikubu
Plaintiff
Housing Finance (K) Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review
Legal Issues
- 1 Whether the court can review its determination made on points of law.
- 2 Whether there was an error apparent on the face of the record regarding the court's jurisdiction.
- 3 Whether the court improperly relied on evidence from an unregistered conveyance and unserved defence.
Ratio Decidendi
The court held that it is settled law that a court cannot review its own determination made on points of law; such matters are properly the subject of an appeal. The applicant's grounds for review were based on alleged errors of law and jurisdiction, which do not fall within the scope of review under the Civil Procedure Rules. The court further found that it had already determined the preliminary objections raised by the defendant, specifically that there was no suit in existence after the plaintiff's notice of withdrawal, and thus no jurisdiction to entertain further applications. The court declined to rehear the issue of jurisdiction or to revisit its earlier ruling, emphasizing that...
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
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Case 1203 of 2006
GEORGE GIKUBU ………………………………….……….. PLAINTIFF
VERSUS
HOUSING FINANCE (K) LTD……………………………. DEFENDANT
RULING
The Applicant has filed a Notice of Motion dated 9th November, 2007 under order XLIV Rules 1 (1) and 6 of Civil Procedure Rules and Section 3A of Civil Procedure Act.
It seeks to review this court’s orders (sic) given on 22nd October, 2007.
It also seeks further orders namely:
“(b) that this Honourable court do submit(sic)it’s ruling on its jurisdiction to hear the 3rd Defendant’s Preliminary objection and/or re-hears(sic)the issue of its jurisdiction.
(c) That the 3rd Defendant’s Preliminary Objection be dismissed.
(d) That cost of this application be paid by the 3rd Defendant/Respondent.”
At the time of hearing of the application, the Applicant limited his submissions based on grounds 1 and 9 set forth on the face of the application. They are:
“(a) There is an error apparent on the face of the record on the ground that the court did not address the issue of its jurisdiction when it delivered its ruling on 22nd October, 2007.
(b) On the unregistered conveyance by Mortgagee dated 24th April, 2006 Section 100(1) (a) of Government Lands Act (Cap 280) forbids all civil courts from receiving evidence of the sale or transfer of land unless the sale or transfer is effected by a registered document. At page 3 and 4 of the Ruling, this court relied heavily on evidence which sprang from a Preliminary Objection which in turn was predicated upon unserved statement of Defence and the unregistered conveyance by Mortgagee dated 24th April, 2006”.
On the reading of those grounds, it shall be evident that the issues raised in those grounds are issues of law based which are prayed to be reviewed. It is trite law that this court cannot review its determination made on points of law.
While I am dwelling on my inability to grant certain orders, I shall also find that order B which seeks to rehear the issue of jurisdiction, cannot be granted.
Even apart from the aforesaid, I must stress that what I heard and determined, were the points raised by the 3rd Defendant which were, in my view, in the nature of the preliminary objections, to the Plaintiff’s Chamber Summons dated 27th July, 2002. And in short what was contended was that there is no suit in existence after the Notice of withdrawal was filed by the Plaintiff and thus the court has no jurisdiction to hear any application in the non-existent suit.
While considering the said points I advisedly refrained from dealing with any facts averred or pleadings filed in respect of the said application before me and that is what is complained of by the applicant herein. He alleges that I did not go into the issue of an alleged forged document, which could have ousted my jurisdiction.
If I was wrong in my determination of the preliminary points, the Applicant has a right to file an appeal which leave I readily granted after the Ruling in question was delivered.
I can only state that I shall be crossing all the limits and infringing the dictates of law, if I allow the application for review before me.
In the premises, I dismiss the application with costs.
Dated and signed at Nairobi this 5th December, 2007.
K. H. RAWAL
JUDGE
5. 12. 07