[2010] KEHC 1168 (KLR)
The court found that there was an apparent error on the face of the ruling delivered on 9th October, as it upheld the preliminary objection seeking to stay the instant suit pending determination of related suits, but then issued an order staying the related suits instead. This inconsistency and contradiction...
Source-derived case information.
- Citation
- [2010] KEHC 1168 (KLR)
- Parties
- Plaintiff: Joseph Njogu Njuguna; Plaintiff: Jane Nyambura Njogu; Defendant: Tetra Pak Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 422 of 2007
- Procedural Posture
- Civil Case / Ruling on Application for Review and Stay of Proceedings
- Outcome
- Application for review allowed; previous order reviewed and corrected; no order as to costs.
- Legal Topics
- Review of Court Orders, Stay of Proceedings, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Njogu Njuguna
Plaintiff
Jane Nyambura Njogu
Plaintiff
Tetra Pak Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review and Stay of Proceedings
Legal Issues
- 1 Whether there was an error apparent on the face of the ruling and order delivered on 9th October.
- 2 Whether the ruling contained internal inconsistencies and contradictions regarding the stay of proceedings.
- 3 Whether the interests of justice require the review and/or variation of the previous order.
Ratio Decidendi
The court found that there was an apparent error on the face of the ruling delivered on 9th October, as it upheld the preliminary objection seeking to stay the instant suit pending determination of related suits, but then issued an order staying the related suits instead. This inconsistency and contradiction warranted review under Order XLIV Rule 1 of the Civil Procedure Rules. The court determined that justice would be served by granting the application for review, thereby correcting the inconsistency and ensuring that the correct suit is stayed pending the outcome of the related matters. No order as to costs was made.
Court Disposition
Application for review allowed; previous order reviewed and corrected; no order as to costs.
Orders
- The ruling and order by Honourable Lady Justice Khaminwa dated and delivered on 9th October is reviewed and/or varied.
- The hearing and proceedings in HCC No. 422 of 2007 Milimani are stayed pending the hearing and determination of HCCC No. 1694 of 2001 Milimani and HCC No. 1661 of 2002 Nairobi.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (MILIMANI COMMERCIAL COURTS)
Civil Case 422 of 2007
JOSEPH NJOGU NJUGUNA
JANE NYAMBURA NJOGU……………PLAINTIFFS
VERSUS
TETRA PAK LIMITED……………………DEFENDANT
RULING
Noticeof Motion dated 18/11/2009Order XLIV Rule 1 and Order L rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, Cap. 21, Laws of Kenya and all other enabling provisions of the law for orders that:-
1. The Ruling and Order by Honourable Lady Justice Khaminwa dated and delivered on 9th October be and is hereby reviewed and/or varied;
2. The hearing and proceedings in this suit namely HCC No. 422 of 2007 Milimani be and are hereby stayed pending the hearing and determination of HCCC No. 1694 of 2001 Milimani – Joseph Njuguna & Another vs. Aberdare Creameries and Tetra Pak and HCC No. 1661 of 2002 Nairobi.
The application is supported by the affidavit of Muigai Gachau and is based on the following grounds:-
(a) There is an error apparent on the face of the ruling and order;
(b)The ruling upheld ground 2 of the defendant/applicant’s Preliminary Objection dated 22nd May 2009 which sought to stay the hearing of the instant suit pending the hearing and determination of HCCC No. 1694 of 2001, Milimani and HCCC No. 1661 of 2002, Nairobi;
(c)The ruling then went on to stay the hearing of HCCC No. 1694 of 2001, Milimani and HCCC No. 1661 of 2002, Nairobi pending the hearing and determination of this suit;
(d)There is apparent internal inconsistencies and contradiction in the said ruling;
(e)It is in the interest of justice and fairness that the ruling and order be reviewed to eliminate the inconsistencies and contradictions.
I have considered the application and I am convinced there is apparenton the face of the rulings. The Ruling upheld ground No. 2 of Applicant’s Preliminary Objection dated 22/5/2009 which sought to stay the hearing of the instant suit pending the hearing and determination of HCC 1694/2001 Milimani and HCCC 1661 of 2002 pending the ruling then went on to stay the hearing of 1694/2001.
I have perused the application and considered prayers made. I am convinced that justice will be served by allowing the application and granting orders sought with no order as to costs.
Dated and delivered at Nairobi this 15th day of October 2010.
J. N. KHAMINWA
JUDGE