[2023] KEHC 26239 (KLR)
The court found that the applicant's notice of motion seeking stay and conservatory orders was without merit. The learned trial magistrate lawfully dismissed the earlier application for review under Order 45, rule 3, as there was no sufficient ground for review. The applicant's attempt to set aside or challenge...
Source-derived case information.
- Citation
- [2023] KEHC 26239 (KLR)
- Parties
- Applicant: Michael Kungu Kigia; Respondent: Meru Teachers House Ltd
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Case E072 of 2023
- Procedural Posture
- Miscellaneous Application / Ruling on Notice of Motion Seeking Stay and Conservatory Orders
- Outcome
- application dismissed with costs to the respondent
- Judges
- TW Cherere
- Legal Topics
- Review of Orders, Stay of Execution, Preliminary Objection, Consent Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Kungu Kigia
Applicant
Meru Teachers House Ltd
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Notice of Motion Seeking Stay and Conservatory Orders
Legal Issues
- 1 Whether the application for stay and conservatory orders is competent and merited.
- 2 Whether the court can set aside or review consent orders from previous High Court decisions through the present application.
- 3 Whether the proper procedure for challenging the dismissal of a review application was followed.
Ratio Decidendi
The court found that the applicant's notice of motion seeking stay and conservatory orders was without merit. The learned trial magistrate lawfully dismissed the earlier application for review under Order 45, rule 3, as there was no sufficient ground for review. The applicant's attempt to set aside or challenge consent orders from previous High Court decisions was procedurally improper; such determinations must be challenged in the appropriate forum, typically by appeal, not by a fresh application in a miscellaneous cause. The application amounted to an impermissible re-litigation of matters already determined. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The notice of motion dated and filed on 21st July, 2023 is dismissed with costs to the respondent.
- The file be closed.
Full Case Text
Judgment text and source record
22 paragraphs
Kigia v Meru Teachers House Ltd (Miscellaneous Civil Case E072 of 2023) [2023] KEHC 26239 (KLR) (30 November 2023) (Ruling)
Neutral citation: [2023] KEHC 26239 (KLR)
Republic of Kenya
In the High Court at Meru
Miscellaneous Civil Case E072 of 2023
TW Cherere, J
November 30, 2023
Between
Michael Kungu Kigia
Applicant
and
Meru Teachers House Ltd
Respondent
Ruling
Brief Background 1. By a ruling dated 30th June, 2023, Michael Kungu Kigia’s (Applicant) application for review filed in Meru CMCC MISC. Appl. 57 of 2015 was dismissed.
2. By notice of motion dated and filed on 21st July, 2023 supported by an affidavit sworn Applicant on 21st, July, 2023, the court is urged to stay the orders issued in Meru CMCC MISC. APPL. 57 OF 2015 and to issue conservatory orders in respect of consent orders made by Oguk J (as he then was) in High Court Civil Case No. 180 of 1991 and by Otieno J in High Court Civil Appeal No. 126 of 2009 where Applicant’s appeal was dismissed.
3. Respondent opposed the application by way of a preliminary objection filed on 04th November, 2023 where it argued the court to find that the application is incompetent and strike it out,
4. I have considered the application in the light of the supporting affidavit, the hrouns of opposition, the preliminary objection and the submission by both parties.
5. Order 45, rule 3 grants the court the powers to dismiss an application for review where it appears to the court that there is not sufficient ground for a review. The learned trial magistrate therefore acted lawfully in dismissing the Applicant’s application for review. As to whether the dismissal was merited is a matter to be settled on appeal as provided for under Order 43 rule 1 (x) and not by an application to set aside as the Applicant herein seeks.
6. Concerning the orders issued by Oguk J (as he then was) in High Court Civil Case No. 180 Of 1991 and by Otieno J in High Court Civil Appeal No. 126 Of 2009 which Applicant appears to be aggrieved with, the right thing to do is to challenge the determination of the court in the proper forum, instead of improperly and impermissibly re-litigating on matters that have already been determined.
7. In the end, I find that the notice of motion dated and filed on 21st July, 2023 is without merit and it is dismissed with costs to the Respondent and its ordered that the file be closed.
DATED AT MERU THIS 30TH DAY OF NOVEMBER 2023WAMAE. T. CHEREREJUDGEAppearancesFor Applicant - N/AFor Respondent - Mr. Mageria for Nyamu Nyaga & Co. Advocates