[2016] KEHC 6417 (KLR)
The court found that the issues raised by the applicant did not fall within the ambit of Order 45 Rule 1 of the Civil Procedure Rules, as there was no mistake apparent on the face of the record nor discovery of new and important evidence. The court further held that it lacked jurisdiction to sit as an appellate...
Source-derived case information.
- Citation
- [2016] KEHC 6417 (KLR)
- Parties
- Applicant: Kweyu Khaisio; Respondent: John Omokobi Wanyongo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 233 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review and Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Stay of Execution, Mistake Apparent on Record, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kweyu Khaisio
Applicant
John Omokobi Wanyongo
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether there was a mistake apparent on the face of the record to warrant review under Order 45 Rule 1 of the Civil Procedure Rules.
- 2 Whether the High Court has jurisdiction to review its own orders in the circumstances presented.
- 3 Whether failure to consider a supplementary affidavit or possession of suit land constitutes grounds for review.
Ratio Decidendi
The court found that the issues raised by the applicant did not fall within the ambit of Order 45 Rule 1 of the Civil Procedure Rules, as there was no mistake apparent on the face of the record nor discovery of new and important evidence. The court further held that it lacked jurisdiction to sit as an appellate court over a decision made by another judge of equal jurisdiction. The appropriate remedy for the applicant would have been to appeal to the Court of Appeal, which the applicant did not pursue. Consequently, the application for review and stay of execution was dismissed.
Court Disposition
application dismissed with costs
Orders
- The application for review and stay of execution is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
LAND AND ENVIRONMENT CASE NO. 233 OF 2013
KWEYU KHAISIO ……………………...APPLICANT
VERSUS
JOHN OMOKOBI WANYONGO …..RESPONDENT
RULING
This application by the applicant is under Order 45(i) of the Civil Procedure Rules. The applicant seeks for a Stay of Execution of the orders made by this court(Omollo J) on 30th September 2014.
The application is grounded on the fact that there is a mistake apparent on the face of the record. This mistake complained of is that court did notice a duly filed supplementary affidavit. Further that the court failed to address the issue as to whether or not the applicant was in possession of the suit land.
The application was opposed by the respondent on the ground that there is no mistake of fact disclosed or apparent in the face of the record. Further there is no discovery of a new and important matter or evidence to warrant the review of the court’s orders.
I am afraid, I agree with the respondent. The issues the applicant raises in this application are not within the ambit of order 45 Rule 1 of the Civil Procedure Rules.
If I were to deal with the issue the applicant raises, I would be sitting as an appeal court on my sister’s judgement. I have no such jurisdiction. I sit as a Court of equal jurisdiction. The applicant had an opportunity to ventrate her grievances through an appeal to the Court of Appeal. She opted not to do so.
An order for review is not appropriate and cannot therefore be granted.
The application herein is therefore dismissed with costs.
Dated at Bungoma this 9th day of March 2016.
S.MUKUNYA - JUDGE