[2023] KEHC 2102 (KLR)
The court found that the applicant had originally sought police assistance from Mulolongo Police Station in their application, and the court granted the orders as prayed. The alleged error was not attributable to the court but to the applicant's own framing of the prayers. The court held that it cannot review its...
Source-derived case information.
- Citation
- [2023] KEHC 2102 (KLR)
- Parties
- Applicant: Charles Mutinda Mutua t/a Charlton Auctioneers; Plaintiff: Elisha Ochieng Odhiambo; Defendant: Booker Ngesa Omole
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Case E001 of 2020
- Procedural Posture
- Civil Case / Ruling on Application for Review of Execution Orders
- Outcome
- Application for review struck out; liberty to file a proper application granted.
- Judges
- RE Aburili
- Legal Topics
- Review of Court Orders, Execution of Decree, Police Assistance in Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mutinda Mutua t/a Charlton Auctioneers
Applicant
Elisha Ochieng Odhiambo
Plaintiff
Booker Ngesa Omole
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Execution Orders
Legal Issues
- 1 Whether the court erred in directing police assistance for execution to Mulolongo Police Station instead of Syokimau Police Station.
- 2 Whether the applicant is entitled to review of the orders based on alleged court error.
Ratio Decidendi
The court found that the applicant had originally sought police assistance from Mulolongo Police Station in their application, and the court granted the orders as prayed. The alleged error was not attributable to the court but to the applicant's own framing of the prayers. The court held that it cannot review its orders on the basis of a mistake that originated from the applicant, especially where the applicant failed to own up to the error by affidavit and instead improperly imputed fault to the court. The application for review was therefore not based on truth and was struck out, with liberty to file a proper application if so advised.
Court Disposition
Application for review struck out; liberty to file a proper application granted.
Orders
- The application for review is struck out.
- The applicant is at liberty to file a proper application with truthful grounds and deposition.
Full Case Text
Judgment text and source record
26 paragraphs
Mutua t/a Charlton Auctioneers & another v Omole (Civil Case E001 of 2020) [2023] KEHC 2102 (KLR) (14 March 2023) (Ruling)
Neutral citation: [2023] KEHC 2102 (KLR)
Republic of Kenya
In the High Court at Siaya
Civil Case E001 of 2020
RE Aburili, J
March 14, 2023
Between
Charles Mutinda Mutua t/a Charlton Auctioneers
Applicant
and
Elisha Ochieng Odhiambo
Plaintiff
and
Booker Ngesa Omole
Defendant
Ruling
1. On 19th December 2022 this court delivered a ruling (sitting in Siaya High Court) granting the Applicant orders that were sought, for provision of security by Mulolongo Police Station for execution of decree.
2. The Applicant is back to court seeking for review of the said orders saying the court misdirected the orders to Mulolongo Police station instead of Syokimau Police station.
3. According to the applicant, this court erred in making such orders.
4. I have perused the Ruling of 19th December 2022 and the application subject of the said Ruling. It is as clear as the day that tit was the applicant who made the application seeking for police assistance specifically from Mulolongo Police station and not Syokimau Police station as now alleged.
5. It follows that the error or mistake cannot be visited on this court which made the orders sought. The applicant has not sworn an affidavit to own up his own mistake. Instead, he has made statements imputing mistake on the part of the court which is incorrect and improper.
6. In the premises, I find the application not based on truth. I decline to grant the same and strike it out.
7. The applicant is however at liberty to file a proper application setting out truthful grounds and deposition and not imputing mistake on the court which had no role to play in the mistaken framing of prayers that were granted as prayed.
8. I so order.
DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF MARCH, 2023R. E. ABURILIJUDGE