[2023] KEHC 26628 (KLR)
The court found that the applicant's grounds for review were based on alleged acts by the respondents that occurred after the delivery of the ruling on 27th July, 2023. Such matters, having arisen subsequent to the ruling, do not constitute new evidence or matters that could justify review under Order 45(1) of the...
Source-derived case information.
- Citation
- [2023] KEHC 26628 (KLR)
- Parties
- Applicant: Rosemary Gatimbi M’nchebere; Respondent: Hellen Nthiori Manyara; Respondent: Elias Mutugi Manyara
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E027 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Orders
- Outcome
- application dismissed
- Judges
- TW Cherere
- Legal Topics
- Review of Orders, Injunctions, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Gatimbi M’nchebere
Applicant
Hellen Nthiori Manyara
Respondent
Elias Mutugi Manyara
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Orders
Legal Issues
- 1 Whether the applicant has established grounds for review and setting aside of the orders dated 27th July, 2023.
- 2 Whether new matters arising after the ruling can form the basis for review under Order 45(1) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the applicant's grounds for review were based on alleged acts by the respondents that occurred after the delivery of the ruling on 27th July, 2023. Such matters, having arisen subsequent to the ruling, do not constitute new evidence or matters that could justify review under Order 45(1) of the Civil Procedure Rules. The court emphasized that review is limited to circumstances where new and important evidence, previously unavailable despite due diligence, is discovered, or where there is an error apparent on the face of the record or other sufficient reason. Since the applicant's allegations pertained to events post-dating the ruling, they could not be considered for...
Court Disposition
application dismissed
Orders
- The summons dated 19th October, 2023 is dismissed with no order for costs.
- Appellants/Respondents are directed to file and serve the record of appeal not later than 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
28 paragraphs
In re Estate of Stanley Manyara Murithi (Deceased) (Civil Appeal E027 of 2023) [2023] KEHC 26628 (KLR) (14 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26628 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E027 of 2023
TW Cherere, J
December 14, 2023
IN THE MATTER OF THE ESTATE OF STANLEY MANYARA MURITHI (DECEASED)
Between
Rosemary Gatimbi M’nchebere
Applicant
and
Hellen Nthiori Manyara
1st Respondent
Elias Mutugi Manyara
2nd Respondent
Ruling
Background 1. By a ruling dated 27th July, 2023, this court dismissed the Applicant’s summons for an injunction on the ground that it was unmerited. This court also discharged the interim orders of injunction issued on 15th March, 2023 are discharged.
2. By summons dated 19th October, 2023, Applicant has moved seeking review and setting aside of the orders dated 27th July, 2023 on the grounds that Respondents have destroyed her crops and threatening her with eviction.
3. Respondents have opposed the application vide a replying affidavit worn by the 1st Appellant on 23rd November, 2023 denying Applicant’s allegation. Respondents further contend that Applicant has not demonstrated discovery of new matters and that if aggrieved by the order dated 27th July, 2023, Applicant ought to file an appeal.
Analysis and Determination 4. I have considered the application in the light of the affidavits on record and annexures and the issue for determination is whether Applicant has made out a case for orders sought.
5. The law governing review of orders is anchored under Section 80 of the Civil Procedure Act and Order 45 (1) of the Civil Procedure Rules. Under Order 45(1) of the Rules, a party seeking review must prove that the application is filed without unreasonable delay; discovery of new or 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 the order made; or on account of some mistake or error apparent on the face of the record or for any other sufficient reason. This position was emphasized in the case of In re Estate of Maero Tindi (Deceased)[2018] eKLR.
6. I understand the Applicant to say that since the delivery of this court’s ruling on 27th July, 2023, Respondents have committed certain acts that are prejudicial to her.
7. Certainly, such new matters do not fall within the preview of a review since they did not exist as at the time the ruling was delivered.
8. For the reasons that I have outlined hereinabove, the summons dated 19th October, 2023 is unmerited and it is dismissed with no order for costs.
9. I notice that since this appeal was filed on 23rd February, 2023, Appellants/Respondents have not taken any steps towards prosecuting the appeal. The Appellants/Respondents are directed to file and serve the record of appeal not later than 45 days from today’s date.
10. Mention on 29th February, 2024 to confirm compliance and for further orders.
DELIVERED IN MERU THIS 14TH DAY OF DECEMBER 2023WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Applicant - N/A for Elijah K. Ogoti & Co. AdvocatesFor Respondents - N/A for OMK Advocates LLP