[2022] KEHC 362 (KLR)
The court held that the applicant's complaints regarding misapprehension of evidence and alleged duress in the Parental Responsibility Agreement were not proper grounds for review. The correct procedure for challenging an error in evidence or law is by way of appeal, not review. Furthermore, since the adoption of...
Source-derived case information.
- Citation
- [2022] KEHC 362 (KLR)
- Parties
- Appellant: OK; Respondent: HK
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 1 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Review Pending Appeal
- Outcome
- application for review dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Parental Responsibility, Review of Orders, Duress in Agreements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
OK
Appellant
HK
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review Pending Appeal
Legal Issues
- 1 Whether the court's alleged misapprehension of evidence is a ground for review of its ruling.
- 2 Whether the Parental Responsibility Agreement was obtained by duress and if this can be addressed in a review application.
Ratio Decidendi
The court held that the applicant's complaints regarding misapprehension of evidence and alleged duress in the Parental Responsibility Agreement were not proper grounds for review. The correct procedure for challenging an error in evidence or law is by way of appeal, not review. Furthermore, since the adoption of the Agreement as a court order is already an issue in the pending appeal, it cannot be revisited in the review application. The application for review was therefore dismissed as unmerited.
Court Disposition
application for review dismissed with costs
Orders
- The application dated 2nd November 2021 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
OK v HK (Civil Appeal 1 of 2021) [2022] KEHC 362 (KLR) (Family) (5 May 2022) (Ruling)
Neutral citation: [2022] KEHC 362 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil Appeal 1 of 2021
AO Muchelule, J
May 5, 2022
Between
OK
Appellant
and
HK
Respondent
(Being an appeal from Children Case No. 277 of 2020 at Nairobi from orders given by Senior Resident Magistrate Hon. H.M. Mbati on 6th January 2021)
Ruling
1. The applicant OK alleged in her application dated 2nd November 2021 for the review of the court’s ruling dated 28th October 2021 that the court had misapprehended the evidence by the respondent HK, which evidence, she stated, was a misrepresentation of facts. Her second complaint was that the Parental Responsibility Agreement that formed the basis of the orders by the trial court was obtained by duress.
2. First, if this court misapprehended the evidence by the respondent, what was open to the applicant was to appeal the decision, and not seek its review. Indeed, in Nyamogo and Nyamogo Advocates v Moses Kipkolum Kogo, Civil Appeal No. 322 of 2000 [2001] I EA 173) it was held that an error or wrong or an erroneous view of evidence or of law is not a ground for review, although it may be a ground for appeal.
3. Secondly, the Agreement in question was on 6th January 2021 adopted by the trial court as its order. The adoption of that Agreement is one of the issue in the Memorandum of Appeal. The appeal has not been heard to determine whether the adoption was erroneous. The issue cannot be taken up in this application.
4. In conclusion, I find the application not merited and dismiss it with costs.
DATED AND DELIVERED ELECTRONICALLY AT NAIROBI THIS 5TH DAY OF MAY 2022. A.O. MUCHELULEJUDGE