[2014] KEELC 81 (KLR)
The court found that the applicant had not satisfied any of the conditions required for review under Order 45 Rule 1 of the Civil Procedure Rules. The application simply repeated the grounds of the previous application without presenting any new or important matter, evidence, or error apparent on the face of the...
Source-derived case information.
- Citation
- [2014] KEELC 81 (KLR)
- Parties
- Applicant: Julius Masha Kalama; Respondent: Joseph Charo Kiti
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 16 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Leave to Appeal Out of Time
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Review of Court Orders, Leave to Appeal Out of Time, Stay of Execution, Adverse Possession, Conditions for Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Masha Kalama
Applicant
Joseph Charo Kiti
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Leave to Appeal Out of Time
Legal Issues
- 1 Whether the applicant has satisfied the conditions for review of the court's ruling under Order 45 Rule 1 of the Civil Procedure Rules.
- 2 Whether the applicant should be granted unconditional leave to appeal out of time.
- 3 Whether the applicant is entitled to a stay of execution.
Ratio Decidendi
The court found that the applicant had not satisfied any of the conditions required for review under Order 45 Rule 1 of the Civil Procedure Rules. The application simply repeated the grounds of the previous application without presenting any new or important matter, evidence, or error apparent on the face of the record. As such, the court dismissed the application for review and for leave to appeal out of time, with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application dated 23rd April 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC MISC. APP NO. 16 OF 2013
JULIUS MASHA KALAMA.........................................................APPLICANT
=VERSUS=
JOSEPH CHARO KITI............................................................RESPONDENT
R U L I N G
Introduction:
These proceedings were commenced by way of a Miscellaneous Application. Indeed, it is the said Miscellaneous Application dated 14th November 2013 filed pursuant to the provisions of Order 42 Rule 6 that is before me. The Application is seeking for the following orders:
(a) THAT there be a review of the ruling of this Honourable court made on 11th April 2014.
(b) THAT the Applicant be granted unconditional leave to appeal out of time.
(c) THAT the costs of this application be provided for.
The Application is premised on the grounds that the Applicant has an arguable appeal; that if execution is not stayed, the Applicant will suffer irreparable loss and that the Applicant has been in occupation of the suit property for more than 30 years and he has tenants in the house that he constructed on the suit property.
In response, the Respondent has deponed that the Application is a non-starter and that this Court cannot grant the orders sought in the circumstances.
The Applicant's advocate filed his submissions which reiterated the averments in the Application.
The Respondent's advocate submitted that the Applicant has not satisfied the conditions set out in Order 45 Rule 1 of the Civil Procedure Rules for review.
Analysis and findings:
The substantive prayer in the Application is for review of my Ruling of 11th April 2014.
In the said Ruling, I dismissed the Applicant's Application dated 14th November 2013. In that Application, the Applicant had sought the leave of the court to file his appeal out of time and for stay of execution.
The grounds upon which the court may review its decision are provided for under Order 45 Rule 1 of the Civil Procedure Rules. Those conditions include: the discovery of new and important matter or evidence which after the exercise of due diligence, was not within his knowledge of the applicant 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 sufficient reason.
The present application has just regurgitated what was in the Application of 14th November 2013. The Applicant has not satisfied any of the conditions required for review of an order.
For those reasons, I dismiss the Application dated 23rd April 2014 with costs.
Dated and delivered in Malindi this 28th day of November, 2014.
O. A. Angote
Judge