[2014] KEHC 2136 (KLR)
The court found that there was no error apparent on the face of the record in its ruling of 21st May 2013. The judge confirmed that all affidavits attached to the application had been considered and that the ruling addressed each issue raised. The applicant failed to attach the affidavit of service allegedly omitted...
Source-derived case information.
- Citation
- [2014] KEHC 2136 (KLR)
- Parties
- Applicant: John Ndungu Mbachio; Respondent: Musa Njuguna; Respondent: Njeri Mwikamba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 160 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review of Court Ruling
- Outcome
- application dismissed
- Judges
- REA Ougo
- Legal Topics
- Review of Judgment, Error on Face of Record, Affidavit of Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Ndungu Mbachio
Applicant
Musa Njuguna
Respondent
Njeri Mwikamba
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review of Court Ruling
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the ruling delivered on 21st May 2013.
- 2 Whether the omission to consider the affidavit of service warranted review and setting aside of the previous ruling.
Ratio Decidendi
The court found that there was no error apparent on the face of the record in its ruling of 21st May 2013. The judge confirmed that all affidavits attached to the application had been considered and that the ruling addressed each issue raised. The applicant failed to attach the affidavit of service allegedly omitted from consideration, and did not explain the loss and damage claimed. Consequently, the application for review lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 11th June 2013 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MISC.CIVIL APPLICATION NO. 160 OF 2011
JOHN NDUNGU MBACHIO ………………………………PLAINTIFF
VERSUS
MUSA NJUGUNA & NJERI MWIKAMBA….………….RESPONDENT
R U L I N G
Before me is the application dated 11th June 2013. The application is brought under section 80 (a) of the Civil Procedure Act and Order 45 rule 2(1) of the Civil Procedure Rules, Cap 21 Laws of Kenya and Article 159 (d) of the Constitution. The applicant seeks to have this Court review its ruling delivered on the 21st May 2013 due to an error apparent on the face of the record and secondly that after doing so this Court to set aside/vary its ruling delivered on the 21st May 2013 and to allow the application dated 14th June 2012.
The application is supported by 3 grounds stated on the face of the application together with a supporting affidavit of Mr.Mungao Rachier an Advocate of the High Court who is seized with the conduct of the matter. Counsel’s main issue in the application is that when I wrote the ruling delivered on the 21st May 2013. I omitted to consider the affidavit service confirming that the respondents were duly served and that because of the said admission, I dismissed the application dated 14/6/2012. He argues that there was an error on the face of the record when I did not take into consideration the entire record as presented; that as a result the applicant has suffered loss and damage.
The application was not opposed. The respondents though served did not attend the hearing of the application. I have read my ruling dated the 21st May 2013. In my ruling I noted that the order that accompanied the application had no penal notice and I was persuaded that the order attached to the application was not the one served on the applicant. I went on further to state that the fonts of the penal notice were different to the one in the main order. My ruling clearly shows that I carefully considered and addressed the orders that were before me. I even made my finding on each issue. It is therefore not correct to state that it was an omission on my part. I looked at all the affidavits attached. There is no error apparent on the face of the record. The applicant has not even attached the affidavit of service he states I did not consider. The loss and damage too is not explained. I find no merit in the application and dismiss it with no merit in the application and dismiss the application with no orders as to costs.
Orders accordingly.
Dated, signed and delivered this 23rdday of June 2014
R.E. OUGO
JUDGE
In the Presence of:-
…………………………………..……………………………………....…For the Applicant
…………………………………………………………………………...For the Respondent
…………………………………………………………………….……………. Court Clerk