[2018] KEHC 5454 (KLR)
The court found that the applicant's financial inability was not a new or important matter that could not have been raised at the time the original order was made. The applicant failed to demonstrate that the requirements for review under Section 80 and Order 45 Rule 1 of the Civil Procedure Act were met....
Source-derived case information.
- Citation
- [2018] KEHC 5454 (KLR)
- Parties
- Applicant: Musa Mueni Tsofa; Respondent: E.A. Railways & Handling Logistics
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 60 of 2018
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review
- Outcome
- application dismissed
- Judges
- CA Otieno
- Legal Topics
- Review of Court Orders, Discretionary Powers, New Evidence, Financial Inability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Musa Mueni Tsofa
Applicant
E.A. Railways & Handling Logistics
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review
Legal Issues
- 1 Whether the applicant has met the threshold for review under Section 80 and Order 45 Rule 1 of the Civil Procedure Act.
- 2 Whether financial inability constitutes a new and important matter justifying review.
- 3 Whether a discretionary order can be challenged through review.
Ratio Decidendi
The court found that the applicant's financial inability was not a new or important matter that could not have been raised at the time the original order was made. The applicant failed to demonstrate that the requirements for review under Section 80 and Order 45 Rule 1 of the Civil Procedure Act were met. Additionally, the court held that it is impermissible to use review as a means to challenge a discretionary order, as established in National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR. Consequently, the application for review lacked merit and was dismissed.
Court Disposition
application dismissed
Orders
- The application dated 11/6/2018 is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
MISC. CIVIL APPLICATION NO. 60 OF 2018
MUSA MUENI TSOFA ..................................................................... APPLICANT
VERSUS
E.A. RAILWAYS & HANDLING LOGISTICS ......................... RESPONDENT
R U L I N G
1. The application dated 11/6/2018 seeks review but has not brought itself within to the established principles to warrant court orders being reviewed under both Section 80 and Order 45 Rule 1, Civil Procedure Act.
2. The only reason advanced for review is financial inability of the applicant. That was a matter within the knowledge of the Applicant when the order was made but was never raised. It cannot therefore be said to be a new and important matter of evidence which could not be produce by him then, due diligence notwithstanding.
3. In any event, in making the order of 17/4/2018, the court exercised a discretion which on the decision in National Bank of Kenya Ltd vs Ndungu Njau [1997] eKLR[1] it is not permissible to base an application for review to challenge a discretionary remedy.
4. For those two reasons, the application lacks merit and the same is dismissed. I make no orders as to costs.
Dated and delivered at Mombasa this 21st day of June 2018.
P.J.O. OTIENO
JUDGE
[1] The Court said:
“In this instant case the matter in dispute had been fully canvassed before the learned judge. He made a conscious decision on the matters in controversy and exercised his discretion in favour of the Respondent. If he had reached a wrong conclusion of law, it could be a good ground for appeal but not for review. Otherwise we agree that the judge would be sItting in appeal on his own judgment which is not permissible in law”.