[2018] KEELC 276 (KLR)

[2018] KEELC 276 (KLR)

The court found that its earlier ruling dated 3.10.2018 was based on the mistaken belief that there was no replying affidavit filed by Gerald Mwithia in response to the application dated 14.10.2013. Upon review of the reconstructed court record, the court acknowledged the existence of the replying affidavit. This constituted a sufficient ground for review under the Civil Procedure Rules, as the failure to consider a material document amounted to an error apparent on the face of the record. The court therefore allowed the application for review, set aside its previous ruling, and ordered that the application of 14.10.2013 be heard afresh.

Citation
[2018] KEELC 276 (KLR)
Parties
Appellant: Gerald Mwithia; Respondent: Stanley Gitonga
Court
Environment and Land Court
Court Station
Environment and Land Court at Meru
Jurisdiction
Kenya
Judgment Date
17 December 2018
Case Number
Environment and Land Appeal 62 of 1998
Procedural Posture
Civil Appeal / Application for Review of Ruling
Outcome
application for review allowed; previous ruling reviewed; application reinstated for hearing afresh
Legal Topics
Review of Rulings, Reinstatement of Applications, Affidavit Consideration
Source Language
English
Civil Procedure Review of Rulings Reinstatement of Applications Affidavit Consideration

Case Brief

Summary, issues, holding and outcome

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Parties

Gerald Mwithia

Appellant

Stanley Gitonga

Respondent

Procedural Posture

Civil Appeal / Application for Review of Ruling

Legal Issues

  1. 1 Whether the court failed to consider the replying affidavit of Gerald Mwithia in the determination of the application dated 14.10.2013.
  2. 2 Whether the ruling dated 3.10.2018 should be reviewed and the application of 14.10.2013 reinstated for hearing.

Ratio Decidendi

The court found that its earlier ruling dated 3.10.2018 was based on the mistaken belief that there was no replying affidavit filed by Gerald Mwithia in response to the application dated 14.10.2013. Upon review of the reconstructed court record, the court acknowledged the existence of the replying affidavit. This constituted a sufficient ground for review under the Civil Procedure Rules, as the failure to consider a material document amounted to an error apparent on the face of the record. The court therefore allowed the application for review, set aside its previous ruling, and ordered that the application of 14.10.2013 be heard afresh.

Court Disposition

application for review allowed; previous ruling reviewed; application reinstated for hearing afresh

Orders

  • The ruling of 3.10.2018 is reviewed.
  • The application dated 14.10.2013 is reinstated for hearing afresh.