[2013] KEHC 5589 (KLR)
The court found that there was no new evidence or material presented by the applicant to justify review of the order of 19/12/2012. The applicant's counterclaim was premised on the main suit, which had already been determined by judgment. The court held that it cannot rehear the 7th defendant's case or write another...
Source-derived case information.
- Citation
- [2013] KEHC 5589 (KLR)
- Parties
- Plaintiff: Njeru Mukunde; Plaintiff: Nyaga Mutumbi; Plaintiff: Nyaga Mwangange; Plaintiff: Nicholas N. Njeru (Suing For Themselves And As Representative of Mukere Clan of Mbeere); Defendant: The Attorney General; Defendant: The Director of Lands Adjudication & Settlement; Defendant: The Chief Land Registrar; Defendant: Lameck Gichangi (Sued As Representative of The Nditi Clan of Mbeere); Defendant: Nyaga Ciathathi; Defendant: Mathew Mugo N. Ngari; Defendant: Erasmus Ireri Njeru; Defendant: Jamlick Njiru Nthuni; Defendant: John Mutiti Ngacha
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Case 165 of 2008
- Procedural Posture
- Civil Case / Ruling on Application for Review of Court Order
- Outcome
- application dismissed with costs
- Judges
- HI Ong'udi
- Legal Topics
- Review of Orders, Counterclaim Procedure, Land Adjudication, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Mukunde
Plaintiff
Nyaga Mutumbi
Plaintiff
Nyaga Mwangange
Plaintiff
Nicholas N. Njeru (Suing For Themselves And As Representative of Mukere Clan of Mbeere)
Plaintiff
The Attorney General
Defendant
The Director of Lands Adjudication & Settlement
Defendant
The Chief Land Registrar
Defendant
Lameck Gichangi (Sued As Representative of The Nditi Clan of Mbeere)
Defendant
Nyaga Ciathathi
Defendant
Mathew Mugo N. Ngari
Defendant
Erasmus Ireri Njeru
Defendant
Jamlick Njiru Nthuni
Defendant
John Mutiti Ngacha
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review of Court Order
Legal Issues
- 1 Whether the court should review or set aside its order of 19/12/2012 deferring the 7th defendant's counterclaim pending appeal.
- 2 Whether the 7th defendant's counterclaim can proceed independently while the main suit is under appeal.
- 3 Whether there is any new evidence or error apparent on the record to justify review.
Ratio Decidendi
The court found that there was no new evidence or material presented by the applicant to justify review of the order of 19/12/2012. The applicant's counterclaim was premised on the main suit, which had already been determined by judgment. The court held that it cannot rehear the 7th defendant's case or write another judgment on the same cause of action. The appropriate forum for the applicant's grievances is the Court of Appeal, where the entire matter, including the counterclaim, can be reconsidered. There was no error apparent on the face of the record or any sufficient reason to warrant review. Accordingly, the application for review was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review dated 12/2/2013 is dismissed with costs.
Full Case Text
Judgment text and source record
37 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL CASE NO. 165 OF 2008
NJERU MUKUNDE
NYAGA MUTUMBI
NYAGA MWANGANGE
NICHOLAS N. NJERU (Suing For Themselves And As Representative of Mukere Clan of Mbeere.........................PLAINTIFFS
VERSUS
THE ATTORNEY GENERAL
THE DIRECTOR OF LANDS ADJUDICATION & SETTLEMENT
THE CHIEF LAND REGISTRAR
LAMECK GICHANGI (Sued As Representative of The
Nditi Clan of Mbeere)
NYAGA CIATHATHI
MATHEW MUGO N. NGARI
ERASMUS IRERI NJERU
JAMLICK NJIRU NTHUNI................................DEFENDANTS
JOHN MUTITI NGACHA...........INTENDED 9TH DEFENDANT
R U L I N G
This is the application by notice of motion dated 12/2/2013. It is brought under order 45(1)(1)(b) of the Civil Procedure Rules for review of this court's order of 19/12/2012 and for the court to allow the applicant 7th defendant's counterclaim to proceed to it final conclusion.
The main ground is that the court did not make a decision on the counter claim which should proceed to hearing. And that the appeal in the civil appeal did not touch on the counterclaim.That the order made by the court on 19/12/2012 was made without hearing parties and without any party asking for the order.
Mr. Muthama Kiome for the plaintiffs/respondents filed grounds of opposition to the application. Mr. Mutitu for the 9th defendant also filed grounds of opposition. A factual background to this matter would suffice.
This case had several parties some of whom have died.Judgment in the case was delivered on 15/3/2011 by Justice Warsame on behalf of Justice W. Karanja. In the said judgment the court found the plaintiffs suit to lack merit and it was dismissed.The plaintiffs were dissatisfied and immediately lodged an appeal in the Court of Appeal.
This file was brought before me on 10/10/2012 for directions. I was informed by Mr. Mugo P.N. for 7th defendant that the matter was for hearing of the 7th defendant's counterclaim.I was taken aback because there was a judgment in the file. I then requested for time to peruse the file before I could give any directions. Upon perusal of the file I gave directions on 9/12/2012 to the effect that since the plaintiffs had appealed against the judgment and considering that the 7th defendant's counterclaim was premised on the plaintiff's suit then it would be prudent that the court awaits the outcome of the appeal.
It is this order that the 7th defendant/applicant wishes to have reviewed and/or set aside. His contention is that this court must hear his counterclaim. Review under Order 45 of the Civil Procedure Rules is premised on two grounds viz:-
Discovery of new and important matter or evidence which was not in the knowledge of the applicant or could be produced by him at the time the decree was passed or made
On account of a mistake or error apparent on the face of the record
Any other sufficient reason.
In this case there is no new evidence or material brought up by the applicant.
A perusal of the record shows that my sister Judge heard the plaintiffs and defendants who all testified and she delivered a judgment. I do not even understand what Mr. Mugo means by insisting that he wants his clients case to be heard. Mr. Mugo was present when the judgment was delivered and if he had any issues with it he ought to have pointed it out and asked for a review of the same then. What he is calling upon this court to do is to rehear the 7th defendant's case and write another judgment. We can not have 2 Judgments in the same file over the same cause of action.
The Court of Appeal being the first appeal court over this matter will reconsider all the evidence adduced including the evidence of the applicant and the pleadings. Mr. Mugo will have the chance to address the said court on the issues he is raising here. This court will then abide by whatever directions the Court of Appeal will give concerning the appeal. Otherwise I see nothing new or any error on the record to make this court review the orders of 19/12/2012. The application is dismissed with costs.
DELIVERED, DATED AND SIGNED AT EMBU THIS 26TH DAY OF JUNE 2013.
H.I. ONG'UDI
JUDGE
In the presence of:-
Mr. Mugo for 7th Applicant
Njue CC