[2013] KEHC 3518 (KLR)
The court found that there was no sufficient reason to review its earlier decision, as there was no new or important fact raised by the applicant. The court was already aware that the appeal had been withdrawn, and this fact was not concealed by the respondent. The application for costs by the respondent was proper...
Source-derived case information.
- Citation
- [2013] KEHC 3518 (KLR)
- Parties
- Appellant: K-REP BANK LTD; Respondent: GEORGE A. SINO t/a JONE BROOKS CONSULTANTS LTD
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 140 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Court Orders
- Outcome
- application dismissed with costs to the respondent
- Judges
- HK Chemitei
- Legal Topics
- Review of Court Orders, Withdrawal of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
K-REP BANK LTD
Appellant
GEORGE A. SINO t/a JONE BROOKS CONSULTANTS LTD
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Court Orders
Legal Issues
- 1 Whether there was an error apparent on the face of the record warranting review of the court's orders.
- 2 Whether the respondent failed to disclose material facts to the court.
- 3 Whether the application for review was merited in light of the withdrawal of the appeal.
Ratio Decidendi
The court found that there was no sufficient reason to review its earlier decision, as there was no new or important fact raised by the applicant. The court was already aware that the appeal had been withdrawn, and this fact was not concealed by the respondent. The application for costs by the respondent was proper and within the law. The argument that the ruling was unsigned was dismissed as insincere, since a signed copy existed in the court file. Accordingly, the application for review was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for review is dismissed with costs to the respondent.
- This ruling shall affect file numbers 141, 142 and 143 of 2011.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Kisumu
Civil Appeal 140 of 2011 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif]
K-REP BANK LTD ….........................................................APPELLANT
VERSUS
GEORGE A. SINO t/a
JONE BROOKS CONSULTANTS LTD …...............RESPONDENT
RULING
The Notice of Motion dated 26th November 2012 prays that this court reviews its orders made on 15th October 2011. The applicants argues that there was an error apparent on the face of record and that had the court been alive to this it would have arrived at a different decision.
The supporting affidavit of Fredrick Oundo contents that this court on 26th October 2011 found that there was no appeal on record and thus by making the orders of 15th October 2011 this court was in error.
The application has been opposed by the respondent vide the replying affidavit of Jude Ragot. Mr. Ragot argued that the application is unmeritorious as there is no basis for it as the court was fully aware that the applicant had withdrawn its appeal.
Having carefully heard the oral submissions, by the parties herein as well as their rival affidavits what I need to determine is whether there was non disclosure of any material facts by the respondent.
By the time this court made its decision of 26th October 2011 there was no appeal or at least no attention was drawn to it of such an appeal.
However the Ruling of 15th October 2012 clearly demonstrate that this court was alive to the fact that the appeal had been withdrawn. It is not therefore entirely true that this was a new and an important fact as the court on its own motion was able to peruse the court file.
Further and in any event all that the respondent was asking in the application dated 6th July 2012 was to “legitimatise” the withdrawal of the appeal by being awarded the costs.
I further agree with the respondent counsels that under the provisions of Order 42 of the Civil Procedure Act there is no provisions of withdrawing an appeal and thus their application dated 6th July 2012 was proper and squarely within the law.
In the premises I do not find any sufficient reason to warrant this court review its decision. There is no new or important fact raised by the applicant. The argument that the Ruling was not signed is insincere for there is a signed copy in the court file.
I therefore dismiss the said application with cost to the respondent. As agreed by both parties this Ruling shall affect file numbers 141, 142 and 143 of 2011.
Orders accordingly.
Dated, signed and delivered at Kisumu this 25th day of April 2013
H. K. CHEMITEI
JUDGE
In the presence of:
….................................. for the Appellant
…............................... for the Respondent
HKC/aao
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