[2018] KEHC 7034 (KLR)
The court found that the applicants failed to meet the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. There was no discovery of new and important matter or evidence, nor was there an error apparent on the face of the record. The court noted that the applicants had not indicated any...
Source-derived case information.
- Citation
- [2018] KEHC 7034 (KLR)
- Parties
- Plaintiff: Hunkar Trading Company Limited; Plaintiff: Jackson Kahungura Kariuki; Defendant: Samuel Waweru Kiigi; Defendant: Blue Roses Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 416 of 2015
- Procedural Posture
- Civil Application / Ruling on Application for Review and Stay of Execution
- Outcome
- application dismissed with costs to the defendants
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Review of Court Orders, Amendment of Pleadings, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hunkar Trading Company Limited
Plaintiff
Jackson Kahungura Kariuki
Plaintiff
Samuel Waweru Kiigi
Defendant
Blue Roses Limited
Defendant
Procedural Posture
Civil Application / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether the applicants have met the threshold for review of the court's ruling under Order 45 Rule 1 of the Civil Procedure Rules.
- 2 Whether the plaintiffs are entitled to a stay of execution of the ruling dismissing their suit.
- 3 Whether the failure to allow amendment of the plaint amounted to a denial of fair hearing.
Ratio Decidendi
The court found that the applicants failed to meet the requirements for review under Order 45 Rule 1 of the Civil Procedure Rules. There was no discovery of new and important matter or evidence, nor was there an error apparent on the face of the record. The court noted that the applicants had not indicated any intention to amend the plaint prior to the application for dismissal, and their current application appeared to be an afterthought. The principles of fair trial had already been considered in the original ruling, and the plaintiffs' suit was found unsustainable. Consequently, the application for review and stay of execution was dismissed with costs to the defendants.
Court Disposition
application dismissed with costs to the defendants
Orders
- The application dated 6th March, 2017 is dismissed with costs to the defendants.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL CASE NO. 416 OF 2015
HUNKAR TRADING COMPANY LIMITED....1ST PLAINTIFF
JACKSON KAHUNGURA KARIUKI................2ND PLAINTIFF
VERSUS
SAMUEL WAWERU KIIGI...............................1ST DEFENDANT
BLUE ROSES LIMITED...................................2ND DEFENDANT
RULING
On 13th October, 2016 this court delivered a ruling on two applications at the instance of the defendants herein dismissing the plaintiffs’ suit with costs.
There is now before me an application by way of Notice of Motion dated 6th March, 2017 under Article 50 of the Constitution, Sections 1A, 1B, 3A, 3B and 80 of the Civil Procedure Act, Order 45 Rule 1 and Order 51 of the Civil Procedure Rules for the substantive order that this court reviews its ruling of 13th October, 2016. There is also a prayer for stay of execution of the said ruling.
The application is supported by an affidavit sworn by the advocate for the plaintiffs alongside the grounds set out on the face of the application. The application is opposed and the parties herein have filed their respective submissions. Several authorities have also been cited.
Order 45 Rule 1 of the Civil Procedure Rules provides for application for review of any decree or order by any person considering himself aggrieved thereby.
The provisions of rule 1 specify the perimeters to be applied in such applications. The applicant has a duty to show that there is “discovery of new and important matter or evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent of the face of the record, or for any other sufficient reason.” It is also provided thereunder that such an application should be made “without unreasonable delay.”
The thrust of the application is that, the court should have allowed an amendment to the plaint to ensure that the plaintiffs are accorded a fair hearing. In fact, it is the plaintiffs’ position that they are in a position to file an application to amend the plaint upon review of the ruling.
The defendants have submitted jointly and severally that, the applicants have not disclosed any new fact or error on the face of the record and in any case, this is an application for review not amendment of the plaint.
There is also no indication that the plaintiffs intended to amend the plaint at any stage before the application to dismiss the suit was filed, except the hollow statement that they were preparing to do so. In that regard, the defendants may be right that the present application is an afterthought.
I have related the application to the pleadings and the provisions of law that have been cited. In the ruling sought to be reviewed I considered, inter alia, some of the issues raised by the applicant herein and more so related to the principles of a fair trial. That notwithstanding, I held that the plaintiffs’ suit could not be sustained.
The present application does not meet the test set out under Order 45 Rule 1 of the Civil Procedure Rules. Having said so, the order that commends itself is that, the application must be and is hereby dismissed with costs to the defendants.
Dated, signed and delivered at Nairobi this 20th day of April, 2018.
A. MBOGHOLI MSAGHA
JUDGE