[2004] KEHC 2404 (KLR)
The court found that the applicant failed to attach the decree or judgment he sought to have reviewed, as required by Order 44 rule 1 of the Civil Procedure Rules. Without the necessary documents, there was nothing before the court to review. Additionally, the applicant, having filed the appeal, was obligated to...
Source-derived case information.
- Citation
- [2004] KEHC 2404 (KLR)
- Parties
- Appellant: Mayieka Oriku; Appellant: Maina Nyachuba; Appellant: Obuchi Omboto; Respondent: Moraa Orina; Respondent: Nyachio Onchonga; Applicant: Julius Makori
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- ? 237 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Expungement of Name
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Judgment, Withdrawal of Suit, Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mayieka Oriku
Appellant
Maina Nyachuba
Appellant
Obuchi Omboto
Appellant
Moraa Orina
Respondent
Nyachio Onchonga
Respondent
Julius Makori
Applicant
Procedural Posture
Civil Appeal / Ruling on Application for Review and Expungement of Name
Legal Issues
- 1 Whether the applicant is entitled to review of the decree/judgment dated 16th May 2002.
- 2 Whether the applicant's name should be expunged from the record as one of the appellants.
- 3 Whether the application for review is competent without attaching the decree or judgment sought to be reviewed.
Ratio Decidendi
The court found that the applicant failed to attach the decree or judgment he sought to have reviewed, as required by Order 44 rule 1 of the Civil Procedure Rules. Without the necessary documents, there was nothing before the court to review. Additionally, the applicant, having filed the appeal, was obligated to prosecute it, notwithstanding the withdrawal of the suit against him in the lower court. The application was therefore dismissed for being procedurally incompetent and lacking merit.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO.237 OF 2001
MAYIEKA ORIKU ) MAINA NYACHUBA ) ………………………………………. APPELLANTS OBUCHI OMBOTO )
VERSUS
MORAA ORINA ) …………………………………… RESPONDENTS NYACHIO ONCHONGA )
RULING:
The applicant JULIUS MAKORI’s application is for court to review decree/judgment dated 16th May 2002. He further prays that his name be expunged from record as one of the appellants.
It was submitted that applicant was sued with others in Kisii CMCC 271 of 2001. Later the Respondent who was the plaintiff in that suit withdrew the case against the applicant.
Application was opposed.
I have carefully considered the submissions. Indeed the Respondent withdrew the case against the applicant in the lower court. However it is the applicant who brought this appeal against the Respondent. True he did so with another but he has to prosecute his appeal.
Secondly there is no decree or order of the judgment the applicant want reviewed attached. Order 44 rule 1 of CPR is very clear. The applicant should have had a decree drawn and attached to his application. This was not done and as such there is nothing for this court to review. In fact even the said judgment of 16/5/2002 is not annexed.
From the above the application is dismissed with costs.
KABURU BAUNI JUDGE 27/5/04
Delivered on 27th May 2004 in presence of applicant.
KABURU BAUNI JUDGE