[2014] KEHC 5436 (KLR)
The court found that the judgment in question was properly signed and delivered in open court on 10th February 2012 in the presence of the parties. The applicant failed to demonstrate any error on the face of the record or procedural unfairness that would justify setting aside the judgment. The court noted that the...
Source-derived case information.
- Citation
- [2014] KEHC 5436 (KLR)
- Parties
- Applicant: Paul Makokha Okoiti; Respondent: Kenya Revenue Authority
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 351 of 2011
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Judgment
- Outcome
- application dismissed with costs
- Judges
- DAS Majanja
- Legal Topics
- Setting Aside Judgment, Res Judicata, Right to Information, Affidavit Evidence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Paul Makokha Okoiti
Applicant
Kenya Revenue Authority
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Judgment
Legal Issues
- 1 Whether the judgment delivered on 10th February 2012 should be set aside for irregularity or incompetence.
- 2 Whether the applicant was denied a fair hearing or opportunity to respond to the respondent's affidavit.
- 3 Whether the application is res-subjudice or an abuse of court process.
Ratio Decidendi
The court found that the judgment in question was properly signed and delivered in open court on 10th February 2012 in the presence of the parties. The applicant failed to demonstrate any error on the face of the record or procedural unfairness that would justify setting aside the judgment. The court noted that the applicant did not request to cross-examine the deponent of the affidavit at the appropriate time, and the respondent had satisfied its obligations regarding disclosure of information. The delay of over two years in bringing the application was deemed inordinate and prejudicial to the respondent, especially as subsequent suits on the same matter had been filed. The court...
Court Disposition
application dismissed with costs
Orders
- The Chamber Summons dated 28th March 2014 is dismissed with costs.
Full Case Text
Judgment text and source record
26 paragraphs
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
JUDICIAL REVIEW DIVISION
MISC. CIVIL APPL. NO. 351 OF 2011
BETWEEN
PAUL MAKOKHA OKOITI ……………………….. APPLICANT
AND
KENYA REVENUE AUTHORITY …....………… RESPONDENT
RULING
The applicant/petitioner has moved the court by way of Chamber Summons dated 28th March 2014 in which he seeks the following orders;
That the judgment made by Justice David Majanja be set aside, or be considered incompetent.
The intended appeal be scrapped and be ignored.
The case be terminated.
Mr Okoiti argued the grounds upon which he sought the judgment to be set aside. He submitted that the judgment he received was not signed and he received it on a Saturday. That he was not given an opportunity to respond to an affidavit which was served on him on 5th February 2012 yet judgment was entered on 10th February 2012. He also states that he was denied the opportunity to cross examine the deponent of the affidavit who was not privy to the case.
Ms Lavuna, counsel for the respondent, opposed the application on the ground that the judgment on record was signed and the petitioner did not suffer any prejudice by receiving the decision via email which was not signed. She noted that the petitioner has already preferred an appeal in the matter. She drew attention to two cases, Industrial Cause No. 25 of 2013, Paul Makokha Okoiti v KRA and JR No. 340 of 2013,which deal with similar issues as the application hence this matter is res-subjudice. Counsel submitted that the application is an abuse of the court process.
Mr Okoiti responded that the Industrial Court case was stayed awaiting the judgment in the Judicial Review matter and as such this application is not res-subjudice.
On the first ground, it is clear that the judgment on record is signed and it was delivered in open court on 10th February 2012 in presence of the parties. The judgment forwarded to the petitioner by email by the Deputy Registrar was for information and in keeping with the judiciary’s duty to ensure access to justice.
The issue in the judgment was whether the petitioner was entitled to information under Article 35(1) of the Constitution. The Court addressed the issue and was satisfied that the respondent by filing an affidavit as to documents had satisfied its obligations. The Court noted that indeed there existed an opportunity for discovery in the event the applicant filed suit to enforce his rights. The said decision was reached after affording the parties an opportunity to address it. The record does not show that the petitioner requested for an opportunity to cross examine the deponent.
The judgment herein was delivered on 10th February 2012. Over two years have elapsed since that date and such delay, in law and in fact, is inordinate and if the proceedings are re-opened, the respondent will suffer substantial prejudice as two subsequent suits on the same matter have been filed against it.
I find and hold that the judgment is regular, there is no error on its face and no grounds have been advanced to warrant setting it aside. The applicant has the right to withdraw his appeal or abandon it without the necessity of setting aside the judgment.
The Chamber Summons dated 28th March 2014 is therefore dismissed with costs.
DATED and DELIVERED at NAIROBI this 9th day of May 2014.
D.S. MAJANJA
JUDGE
Mr Okoiti, the applicant in person.
Ms Lavuna, Advocate, instructed by the Kenya Revenue Authority.