[2015] KEELC 459 (KLR)
The court held that the failure to consider certain pleadings or evidence, unless it is shown that the court inadvertently failed to see them, does not constitute sufficient reason to grant a review under the Civil Procedure Rules. The court further found that it had, in fact, considered the Defendant's Replying...
Source-derived case information.
- Citation
- [2015] KEELC 459 (KLR)
- Parties
- Applicant: Patrick Khadondi; Respondent: Japhet Noti Charo
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- ? 86 of 2013
- Procedural Posture
- Civil Application / Ruling on Application for Review of Previous Order
- Outcome
- application dismissed with costs
- Judges
- OA Angote
- Legal Topics
- Review of Court Orders, Contempt of Court, Burden of Proof, Service of Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Khadondi
Applicant
Japhet Noti Charo
Respondent
Procedural Posture
Civil Application / Ruling on Application for Review of Previous Order
Legal Issues
- 1 Whether the court's failure to consider the Defendant's Replying Affidavit constitutes sufficient reason for review of the previous order.
- 2 Whether an application for review is the proper remedy where a party alleges the court failed to consider certain pleadings.
- 3 Whether the Plaintiff met the required standard of proof for contempt of court.
Ratio Decidendi
The court held that the failure to consider certain pleadings or evidence, unless it is shown that the court inadvertently failed to see them, does not constitute sufficient reason to grant a review under the Civil Procedure Rules. The court further found that it had, in fact, considered the Defendant's Replying Affidavit in the original ruling. Additionally, the court reiterated that the burden of proof in contempt proceedings is high due to their criminal nature, and the Plaintiff had failed to meet this burden. Therefore, the application for review was dismissed as the proper remedy would have been an appeal, not a review.
Court Disposition
application dismissed with costs
Orders
- The Plaintiff's Application dated 29th January 2015 is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MALINDI
ELC CIVIL CASE NO. 86 OF 2013
PATRICK KHADONDI..........................................PLAINTIFF/APPLICANT
=VERSUS=
JAPHET NOTI CHARO................................DEFENDANT/RESPONDENT
R U L I N G
Introduction:
On 21st November 2014, I dismissed the Application by the Plaintiff in which he was seeking to have the Defendant committed to jail for contempt of a court order.
The Plaintiff has filed an Application dated 29th January, 2015 in which he is seeking to review and set aside my orders of 21st November 2014.
The Application is premised on the grounds that the court inadvertently omitted to consider the pleadings and particularly the Replying Affidavit by the Defendant in which he admitted committing the contemptuous acts on account of having not been served with the order of 29th May 2013.
In his Replying Affidavit, the Defendant has deponed that the issues raised on the current Application can only be dealt with on appeal and not on an Application for review.
The Application by the Applicant is premised on the ground that this court did not consider the Defendant's Replying Affidavit when it delivered the Ruling of 21st November 2014.
Where a party alleges that the trial court failed to consider the evidence and pleadings while arriving at its decision, the dissatisfied party can only file an appeal and not file an application for review. The failure by the court to consider the pleadings on record, unless the court inadvertently did not see those pleadings at all, cannot be said to be “ a sufficient reason” to entertain an application for review.
Indeed, in my Ruling of 21st November, 2014, I considered the Affidavit that was filed by the Defendant. Although this court found as a fact that the Defendant was served with the orders of the court, it was my considered opinion that a party alleging that there has been contempt of court must prove that allegation to the required standards. It does not matter that the Respondent has not specifically rebutted that allegation. Considering that contempt proceedings are criminal in nature the burden of proving that the opposite party is in breach is paramount. That is what the Plaintiff failed to do.
Consequently, I disallow the Plaintiff's Application dated 29th January. 2015 with costs.
Dated and delivered in Malindi this 12th day of June, 2015.
O. A. Angote
Judge