[2008] KEHC 1029 (KLR)
The court found that the extracted order did not conform to its ruling of 21.07.2008 and that the mandatory procedures under Order XX Rule 6(1) and Rule 7 of the Civil Procedure Code were not followed. The court held that a decree or order must agree with the judgment or ruling, and where there is a dispute, it must...
Source-derived case information.
- Citation
- [2008] KEHC 1029 (KLR)
- Parties
- Plaintiff: Matunda Estate Limited; Defendant: EVG-Three D Constructions Systems Limited; Defendant: Development Bank of Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 195 of 2008
- Procedural Posture
- Civil Case / Ruling on Application to Set Aside Extracted Order
- Outcome
- Application to set aside the extracted order is allowed.
- Legal Topics
- Extraction of Orders, Non Conformity With Judgment, Setting Aside Orders, Order Xx Rule 6, Order Xx Rule 7
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Matunda Estate Limited
Plaintiff
EVG-Three D Constructions Systems Limited
Defendant
Development Bank of Kenya Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application to Set Aside Extracted Order
Legal Issues
- 1 Whether the extracted order conformed to the court's ruling of 21.07.2008.
- 2 Whether non-compliance with Order XX Rule 6(1) and Rule 7 of the Civil Procedure Code renders the order a nullity.
- 3 Whether the order should be set aside for failure to follow prescribed procedure.
Ratio Decidendi
The court found that the extracted order did not conform to its ruling of 21.07.2008 and that the mandatory procedures under Order XX Rule 6(1) and Rule 7 of the Civil Procedure Code were not followed. The court held that a decree or order must agree with the judgment or ruling, and where there is a dispute, it must be settled by the judge. Since the extracted order was not in conformity with the ruling and the proper procedure was not observed, the court set aside the extracted order and directed that a new order, conforming to the ruling and following the prescribed procedure, be prepared and extracted. Costs were ordered to be in the cause.
Court Disposition
Application to set aside the extracted order is allowed.
Orders
- The extracted order is set aside.
- A new order conforming to the court's ruling shall be prepared and extracted in accordance with Order XX of the Civil Procedure Code.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (MILIMANI COMMERCIAL COURTS) Civil Case 195 of 2008
MATUNDA ESTATE LIMITED………...........................................……......PLAINTIFF
VERSUS
EVG-THREE D CONSTRUCTIONSSYSTEMS LIMITED…….1ST DEFENDANT
DEVELOPMENT BANK OF KENYALIMITED…………………2ND DEFENDANT
RULING
Notice of motion dated 12. 08. 08 under Section 3A Cap 21 order XX Rule 6 91) and 7 of Civil Procedure Code seeking order to set aside court order made by this court on 22. 07. 08 and all steps and actions done under the provisions of that order in respect of LR. 12610/04 (ir43769) or otherwise on the grounds that the order does not accord with the ruling of the court made on 21. 07. 2008 and it is contrary to provisions of Order XX Rule 6 (1) Civil Procedure Code and that the said order was extracted by first or second Defendants without the knowledge or approval of the Plaintiff and in contrary to order XX Rule 7. He said the order is a nullity and should be set aside.
The application is opposed by first Defendant who has filed a Replying affidavit sworn by Robert Keter. The Respondent cited the Court of Appeal decision in Civil Appeal No. 9 of 1994 between Sherbbir Esmail –vs- Kenya complex. The court said that unless a party is prejudiced by non compliance of order 20 Rule 7 and the issue that it is mandatory to comply does not arise. On the other hand, the Applicant has cited authorities; Highway Furniture Mart Ltd –vs- Permanent Secretary Office of the President and Attorney General.In that appeal, the court said regarding Order XX Rule 6 (1) a decree should agree with the judgment and Order XX Rule 7 in case of dispute the decree is settled by Judge. A decree that is not in conformity with judgment is liable to be reversed and set aside for a party to suit cannot suffer because of errors committed by court. The court would otherwise be functus officio if the decree was conforming to the judgment.
In this matter no appeal has been filed against the Ruling of this Court. It is said that the extracted order does not conform with the Ruling and it is a nullity and should be set aside.
The provisions of order XX 6 (1) and 7 Civil Procedure Code were not followed. In the circumstances I set aside the order extracted and order that an order in conformity with the Ruling of the court be prepared and extracted following the laid out procedure provided under order XX Civil Procedure Code.
Costs shall be in the cause.
DATED this 4th day of November 2008.
JOYCE N. KHAMINWA
JUDGE