[2012] KEHC 3822 (KLR)
The court found that there was a clear error apparent on the face of the record, as the ruling delivered on 19th July, 2011, was identical to an earlier ruling and did not address the correct application before the court. Both parties acknowledged the error. Consequently, the court set aside the orders made in the...
Source-derived case information.
- Citation
- [2012] KEHC 3822 (KLR)
- Parties
- Plaintiff: Mercy Wangari; Plaintiff: James Kibe; Plaintiff: Peter Mwaura; Plaintiff: Kayole Bidii Jua Kali Association; Defendant: Hiram Gitonga Mbogo; Defendant: Walter Okeo Mbata; Defendant: Francis Ngema Waititu; Defendant: Ann Waititu Ngema; Defendant: Julius Njogo Ngari; Defendant: Ferdined Waititu; Defendant: Martin Njuguna Mwangi; Defendant: Salone Nashilile
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 558 of 2009
- Procedural Posture
- Notice of Motion / Application to Set Aside Previous Orders Due to Error Apparent on the Face of the Record
- Outcome
- Application allowed. Orders of 19th July, 2011 set aside. Status quo to be maintained pending hearing of the main suit. Costs in the cause.
- Judges
- FI Koome
- Legal Topics
- Setting Aside Orders, Error Apparent on Record, Maintenance of Status Quo, Injunctions, Compliance With Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mercy Wangari
Plaintiff
James Kibe
Plaintiff
Peter Mwaura
Plaintiff
Kayole Bidii Jua Kali Association
Plaintiff
Hiram Gitonga Mbogo
Defendant
Walter Okeo Mbata
Defendant
Francis Ngema Waititu
Defendant
Ann Waititu Ngema
Defendant
Julius Njogo Ngari
Defendant
Ferdined Waititu
Defendant
Martin Njuguna Mwangi
Defendant
Salone Nashilile
Defendant
Procedural Posture
Notice of Motion / Application to Set Aside Previous Orders Due to Error Apparent on the Face of the Record
Legal Issues
- 1 Whether there was an error apparent on the face of the record in the ruling delivered on 19th July, 2011.
- 2 Whether the orders made on 19th July, 2011 should be set aside.
- 3 What interim orders should be made pending the hearing and determination of the main suit.
Ratio Decidendi
The court found that there was a clear error apparent on the face of the record, as the ruling delivered on 19th July, 2011, was identical to an earlier ruling and did not address the correct application before the court. Both parties acknowledged the error. Consequently, the court set aside the orders made in the impugned ruling and directed that the status quo over the property be maintained pending the hearing and determination of the main suit. The court further directed the parties to comply with the Civil Procedure Rules and prepare the main suit for hearing within sixty days. Costs of the application were ordered to be in the cause.
Court Disposition
Application allowed. Orders of 19th July, 2011 set aside. Status quo to be maintained pending hearing of the main suit. Costs in the cause.
Orders
- Orders made on 19th July, 2011 are set aside.
- Status quo over LR No. A1-602, Kayole Services Scheme, to be maintained until hearing and determination of the suit.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAIROBI
ENVIRONMENTAL & LAND CASE 558 OF 2009
MERCY WANGARI
JAMES KIBE
PETER MWAURA
KAYOLE BIDII JUA KALI ASSOCIATION ……..........…….. PLAINTIFFS
VERSUS
HIRAM GITONGA MBOGO
WALTER OKEO MBATA
FRANCIS NGEMA WAITITU
ANN WAITITU NGEMA
JULIUS NJOGO NGARI
FERDINED WAITITU
MARTIN NJUGUNA MWANGI
SALONE NASHILILE …………........................……….…… DEFENDANTS
RULING
The notice of motion dated 31st October, 2011 is taken out by the Defendants. They are seeking for orders that the orders made by Muchelule, J on 19th July, 2011, and delivered by Koome, J (as she then was) on 28th October, 2011, be reversed and set aside.
This application is supported by the grounds that there is an error apparent on the face of the record. The errors are further explained in the supporting affidavit sworn by Francis Gema Waititu on 31st October, 2011. According to the applicants, Muchelule, J wrote the ruling dated 4th July, 2011 in respect of the wrong application which had been determined. Indeed, the ruling of 19th July, 2011, is word for word similar to the one that was delivered on 26th July, 2010. That ruling was in respect to an application for injunction that had been determined.
Following the ruling of 26th July, 2010, the defendants filed a notice of motion dated 30th December, 2010, in which they sought for an order of stay of the orders of 26th July, 2010, and the setting aside or discharge of the order of 26th July, 2010.
Incidentally, the Judge made the same orders which in my view, is an error apparent on the face of the record. Mr Gachomo, learned counsel for the plaintiffs agreed that the Judge did not indicate which application was the subject of this was ruling.
Upon consideration of the matters stated in the application, the replying affidavit and submissions by both counsel, I am satisfied that there is an error apparent on the face of the ruling that was written by Muchelule, J and signed on 19th July, 2011.
Accordingly, those orders made therein are set aside. The order that commends itself in the meantime is the one for maintenance of status over the property known as LR No. A1-602, Kayole Services Scheme, until the hearing and determination of the suit. Parties are directed to prepare the main suit for hearing by complying with the Civil Procedure Rules within 60 [sixty] days.
Costs of the application shall be in the cause.
Ruling read and signed this 3rd day of February, 2012.
MARTHA KOOME
JUDGE OF APPEAL
Note:
This application was heard and concluded on 15th November, 2011, when I was a Judge of the High Court. The matter was pending for ruling when I was appointed as a Judge of the Court of Appeal. I proceed to write and append my signature thereto in my new capacity.