[2013] KEHC 1389 (KLR)
The court held that the failure to annex the ruling or order sought to be reviewed is a procedural omission that does not render the application fatally defective. The ruling and order form part of the court record and can be accessed in the file. The court emphasized the overriding objective of the Civil Procedure...
Source-derived case information.
- Citation
- [2013] KEHC 1389 (KLR)
- Parties
- Plaintiff: Public Trustee; Defendant: Mohamed Omar Mohamed; Defendant: Ahmed Omar Mohamed; Defendant: Twahir Omar Mohamed; Defendant: Abdalla Omar Mohamed; Defendant: Muhidin Omar Mohamed; Defendant: Said Omar Mohamed; Defendant: Manthura Omar Mohamed; Defendant: Umi Omar Mohamed; Defendant: Teba Omar Mohamed; Defendant: Hafswa Omar Mohamed; Defendant: Khadija Omar Mohamed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 95 of 2006
- Procedural Posture
- Civil Suit / Ruling on Preliminary Objection
- Outcome
- preliminary objection dismissed with costs
- Judges
- GO Shikwe
- Legal Topics
- Preliminary Objection, Review of Ruling, Procedural Omission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Public Trustee
Plaintiff
Mohamed Omar Mohamed
Defendant
Ahmed Omar Mohamed
Defendant
Twahir Omar Mohamed
Defendant
Abdalla Omar Mohamed
Defendant
Muhidin Omar Mohamed
Defendant
Said Omar Mohamed
Defendant
Manthura Omar Mohamed
Defendant
Umi Omar Mohamed
Defendant
Teba Omar Mohamed
Defendant
Hafswa Omar Mohamed
Defendant
Khadija Omar Mohamed
Defendant
Procedural Posture
Civil Suit / Ruling on Preliminary Objection
Legal Issues
- 1 Whether failure to annex the ruling or order sought to be reviewed renders the application fatally defective.
- 2 Whether the omission to annex the ruling is a curable procedural defect under the Civil Procedure Act and Rules.
Ratio Decidendi
The court held that the failure to annex the ruling or order sought to be reviewed is a procedural omission that does not render the application fatally defective. The ruling and order form part of the court record and can be accessed in the file. The court emphasized the overriding objective of the Civil Procedure Act and Rules, which is to facilitate the just, expeditious, proportionate, and affordable resolution of civil disputes. Further, Article 22(3)(d) of the Constitution provides that courts should not be unreasonably restricted by procedural technicalities. Therefore, the preliminary objection lacked merit and was dismissed with costs.
Court Disposition
preliminary objection dismissed with costs
Orders
- The preliminary objection is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
35 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 95 OF 2006(OS)
IN THE MATTER OF THE ESTATE OF OMAR MOHAMED HATIMY - (DECEASED)
PUBLIC TRUSTEE …................…....................................……..PLAINTIFF
VERSUS
MOHAMED OMAR MOHAMED
AHMED OMAR MOHAMED
TWAHIR OMAR MOHAMED
ABDALLA OMAR MOHAMED
MUHIDIN OMAR MOHAMED
SAID OMAR MOHAMED
MANTHURA OMAR MOHAMED
UMI OMAR MOHAMED
TEBA OMAR MOHAMED
HAFSWA OMAR MOHAMED
KHADIJA OMAR MOHAMED ………...........…............…DEFENDANTS
RULING
The 5th, 8th, 10th and 11th Respondents have raised a preliminary objection on the 1st Defendants application which basically seeks to have the ruling delivered by Hon. Justice Ibrahim reviewed.
The grounds are that the ruling sought to be reviewed has not been annexed and or exhibited and neither was an order extracted. That the reason for this is that rulings and Judgments contain facts reasons for the decisions and the principles of law applicable hence the requirement to extract the order or decree sought to be reviewed.
I am therefore invited to make a finding that because the ruling sought to be reviewed has not been annexed to the application then the application is fatally defective and it ought to be dismissed.
It is incumbent upon the Court to bear in mind the overriding objective of the Civil Procedure Act and Rules thereunder which are stated thus,
“to facilitate the just expeditions proportionate and affordable resolution of the civil disputes”.
Further article 22(3) (d) provides,
“The Court while observing the rules of natural justice shall not be unreasonably restricted by procedural technicalities”.
In the present case the failure to annex the ruling and or order to be reviewed is a procedural omission which is curable by the fact that the ruling forms part of the proceedings and can be found in the file and so is the order. The preliminary objection has no merit and it is dismissed with costs.
Ruling delivered dated and signed this 6th day of November, 2013.
…....................
M. MUYA
JUDGE
6TH NOVEMBER, 2013
In the presence of:-
Learned Counsel for the 5th, 8th, 10th and 11th Defendant Mr. Khatib
Other Counsels absent