[2008] KEHC 2619 (KLR)
The court held that the Plaintiff's application for review was fatally defective because it failed to annex an extract of the order sought to be reviewed, as required by law. The court found that the order made on 4th December, 2006, directing the Plaintiff to pay costs to the Defendant, was indeed an order capable...
Source-derived case information.
- Citation
- [2008] KEHC 2619 (KLR)
- Parties
- Plaintiff: Harpeet Singh Lotay; Defendant: Starlit Insurance Brokers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 1072 of 2000
- Procedural Posture
- Civil Case / Ruling on Preliminary Objection
- Outcome
- application struck out and dismissed
- Judges
- GG Okwengu
- Legal Topics
- Preliminary Objection, Review of Orders, Extraction of Orders, Formal Requirements, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Harpeet Singh Lotay
Plaintiff
Starlit Insurance Brokers Limited
Defendant
Procedural Posture
Civil Case / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to extract and annex the order sought to be reviewed renders the application fatally defective.
- 2 Whether the order in question was capable of extraction under the Civil Procedure Act.
Ratio Decidendi
The court held that the Plaintiff's application for review was fatally defective because it failed to annex an extract of the order sought to be reviewed, as required by law. The court found that the order made on 4th December, 2006, directing the Plaintiff to pay costs to the Defendant, was indeed an order capable of extraction under Section 2 of the Civil Procedure Act. The Plaintiff's argument that the order was not a final judgment and therefore not extractable was rejected. The authorities cited by the Defendant were found applicable, and the absence of the extracted order meant the application could not be properly considered. Consequently, the application was struck out and dismissed.
Court Disposition
application struck out and dismissed
Orders
- The Plaintiff's application dated 13th November, 2007 is struck out and dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 1072 of 2000
HARPEET SINGH LOTAY……..................…. PLAINTIFF
V E R S U S
STARLIT INSURANCE BROKERS
LIMIT…...................................................…. DEFENDANT
R U L I N G
By a notice of preliminary objection dated 12th February, 2008, the Defendant has raised an objection to the Plaintiff’s notice of motion dated 13th November, 2007, on the ground that the order made on 4th December, 2006, which the Plaintiff seeks through the motion to have reviewed and or set aside has not been extracted or annexed to the motion as required by law. It is contended that in the absence of such extract, it is not clear as to what the application seeks to have reviewed. Relying on the cases of:
· Orchid Pharmacy Limited vs. Southern Credit Banking Corporation Limited & 2 Others (2006) eKLR,
· Combined Mineral Limited vs. Tiomin Resources Inc (2006) eKLR, and,
· Waweru Kamau vs. Joseph Mucheru Gichuki & Mwangi Khanguru (2006) eKLR.
The Court was urged to dismiss the application as being fatally defective.
For the Plaintiff, it was submitted that the order sought to be reviewed was not a final judgment capable of extraction. Counsel for the Plaintiff sought to distinguish the cited authorities contending that they were all in respect of final judgment.
Defence counsel’s response was that Section 2 of the Civil Procedure Act, clearly defines an order as a formal expression of any decision of a court which is not a decree and that therefore, any decision of the court is an order.
I have considered the preliminary objection and the submissions made by Counsel. I note that the Plaintiff’s application is brought under Order XLIV Rule 1 of the Civil Procedure Rules. That means that Plaintiff accepts that what he seeks to have reviewed is an order made by the court. As submitted by the defence counsel, “order” as defined in Section 2 of the Civil Procedure Act means “the formal expression of any decision of a court which is not a decree.” In this case the court record shows that on the 4th December, 2006, the court made a decision that the Plaintiff should pay to the Defendant costs for the day assessed at Kshs.15,000/= and that the costs be paid before the plaintiff could next fix the case for further hearing. That is clearly an order capable of extraction. The issue of a final judgment does not therefore arise. Without annexing a copy of an extract of the order sought to be reviewed, the plaintiff’s application is fatally defective. He must therefore, go back to the drawing board.
In the circumstances, the application is struck out and dismissed.
Orders accordingly.
Dated, signed and delivered this 12th day of March, 2008.
H. M. OKWENGU
JUDGE