[2009] KEHC 3416 (KLR)
The court found that the application was fatally defective for two principal reasons: first, Order XXI Rule 22 was inapplicable as the decree in question had not been sent to another court for execution; second, the applicant failed to extract and annex the decree or order sought to be reviewed, which is a mandatory...
Source-derived case information.
- Citation
- [2009] KEHC 3416 (KLR)
- Parties
- Plaintiff: Gichuhi Githumbu; Defendant: John Cerere Mwangi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 42 of 1999
- Procedural Posture
- Civil Case / Ruling on Application for Stay of Execution and Review
- Outcome
- application struck out with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Stay of Execution, Review of Judgment, Procedural Defects
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gichuhi Githumbu
Plaintiff
John Cerere Mwangi
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay of Execution and Review
Legal Issues
- 1 Whether the application for stay of execution and review is competent and properly before the court.
- 2 Whether failure to annex the decree or order sought to be reviewed is fatal to the application.
- 3 Whether Order XXI Rule 22 of the Civil Procedure Rules applies to the circumstances of this case.
Ratio Decidendi
The court found that the application was fatally defective for two principal reasons: first, Order XXI Rule 22 was inapplicable as the decree in question had not been sent to another court for execution; second, the applicant failed to extract and annex the decree or order sought to be reviewed, which is a mandatory requirement for review applications. Without the relevant decree or order, the court had nothing to review. These procedural defects were deemed inexcusable, especially given that the application was drawn and filed by qualified counsel. Consequently, the application was struck out with costs to the respondent.
Court Disposition
application struck out with costs to the respondent
Orders
- The application dated 5/7/2005 is struck out.
- Costs awarded to the respondent/plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Case 42 of 1999
GICHUHI GITHUMBU…………...………………...PLAINTIFF
VERSUS
JOHN CERERE MWANGI………………………..DEFENDANT
RULING
The application dated 5/7/2005 is brought under Section 3A Order XX1 Rules 22 (1) and Order XLIV Rule 1 of the Civil Procedure Rules. It is seeking orders of Stay of Execution of the Judgment delivered on 16/3/2005. The same also seeks orders of review of the said Judgment and that the matter be heard de-novo. Having heard both counsel on the same, my finding is that this application is fatally defective and it does not give me the basis to decide on its merits if it has any merit at all. I agree with Mr. Munene for the Respondent that the application has flouted many provisions of the law and this is inexcusable given that it was drawn and filed by a qualified counsel.
Firstly, Order XXI Rule 22 deals with decrees which have been sent to another court for execution. The decree herein if any has been extracted is not a decree that has been sent to this court for execution and so that provision is totally inapplicable in this case.
Secondly, it is trite law now that in an application for review, the decree or order in question must be extracted and annexed to the application – see the case of GULAM HUSSEIN MULLA JIVANJI etc Civil Appeal No. 29 of 1930. It matters not that the decree or order in question is in the same court file. The aggrieved party has the duty to correct it and annex it to the application. Without the decree or order in question, this court has nothing to review and this application must fail at this stage. For those 2 reasons, I strike out this application with costs to the respondent/plaintiff.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 17TH day of June 2009.
In presence of:-Mr Njenga for Ndena & Mr. Munene for Respondent
W. KARANJA
JUDGE