[2005] KEHC 1772 (KLR)
The court found that the applicant failed to extract a decree or order from the previous ruling, which is a fatal procedural defect for an application for review. Furthermore, the court determined that the documents annexed to the application were in existence and available prior to the original application for...
Source-derived case information.
- Citation
- [2005] KEHC 1772 (KLR)
- Parties
- Applicant: Joseph Kamau Gateri; Respondent: Nairobi City Council; Respondent: Gateru Mutuanguare Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 439 of 2004
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Injunction Ruling
- Outcome
- application dismissed with costs to the respondents
- Legal Topics
- Review of Court Orders, Injunctions, Discovery of New Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Kamau Gateri
Applicant
Nairobi City Council
Respondent
Gateru Mutuanguare Co. Ltd
Respondent
Procedural Posture
Civil Suit / Ruling on Application for Review of Injunction Ruling
Legal Issues
- 1 Whether the applicant has met the threshold for review of a court ruling based on discovery of new and important evidence.
- 2 Whether failure to extract a decree or order is fatal to the application for review.
- 3 Whether the evidence presented qualifies as new evidence not available with due diligence at the time of the original application.
Ratio Decidendi
The court found that the applicant failed to extract a decree or order from the previous ruling, which is a fatal procedural defect for an application for review. Furthermore, the court determined that the documents annexed to the application were in existence and available prior to the original application for injunction, and thus did not constitute new evidence that could not have been produced with due diligence. As a result, the applicant did not satisfy the requirements for review under the Civil Procedure Rules. The proper remedy for the applicant was to appeal the ruling and seek a stay in the Court of Appeal, not to seek review in the High Court.
Court Disposition
application dismissed with costs to the respondents
Orders
- The application for review is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBICivil Suit 439 of 2004JOSEPH KAMAU GATERI…………….…………...PLAINTIFF/ APPLICANTVERSUSNAIROBI CITY COUNCIL………………...1ST DEFENDANT/ RESPONDENT
GATERU MUTUANGUARE CO. LTD…….2ND DEFENDANT/ REPONDENT
RULING
This application of the 12/8/2004 is to review my ruling of the 28/7/2004 on the ground of the discovery of new and important matters and evidence which after the exercise of due diligence was not within the Applicant’s knowledge. The ruling referred to, dismissed an application by the Applicant herein for an injunction to restrain the Respondent from selling, transferring or dealing with the suit premises. The reason for the dismissal was that on the evidence before me the Applicant had not shown that he had applied for a renewal of the lease of the suit premises which had expired.
I notice that the Applicant has not extracted a decree or order from my Ruling, which is fatal to this application. (See Jiranji Vs Jiranji 1929/30 KLR Vol 12 p 44 and Matahe Farmers Co. Vs N Farmers Co. Ltd HCCC No. 32 of 1974) Leaving aside the question of whether there was a decree or order extracted, the documents annexed to the present application were all in existence and available prior to the application of the 30 April 2004 for the injunction. I cannot see that the Applicant has shown that there is any new evidence which with due diligence could not have been produced in the first instance.
It seems to me that the Applicant’s remedy is to appeal my ruling and seek a stay in the Court of Appeal. I am not in a position to assist the Applicant further and have no alternative, for the reasons given, but to dismiss the application with costs to the Respondents.
DATED and DELIVERED at NAIROBI on the 20th day of January 2005
P. J RANSLEY
JUDGE