[2019] KEHC 11074 (KLR)
The court found that the appellants failed to provide any material or basis for the exercise of its discretion to review the dismissal order. There was no evidence of discovery of new and important matter, no error or mistake apparent on the face of the record, and no other sufficient reason advanced. The appellants...
Source-derived case information.
- Citation
- [2019] KEHC 11074 (KLR)
- Parties
- Appellant: Rachel Wambui; Appellant: Mary Njeri; Appellant: Ann Wairimu; Respondent: Louis Kambo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 60 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Dismissal Order
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule, A Ali-Aroni
- Legal Topics
- Review of Court Orders, Appeal Dismissal, Record of Appeal Requirements
- 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
Rachel Wambui
Appellant
Mary Njeri
Appellant
Ann Wairimu
Appellant
Louis Kambo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Dismissal Order
Legal Issues
- 1 Whether the appellants have met the legal threshold for review of the court's dismissal order.
- 2 Whether there was discovery of new and important evidence, error apparent on the face of the record, or any other sufficient reason to warrant review.
Ratio Decidendi
The court found that the appellants failed to provide any material or basis for the exercise of its discretion to review the dismissal order. There was no evidence of discovery of new and important matter, no error or mistake apparent on the face of the record, and no other sufficient reason advanced. The appellants had also failed to comply with procedural requirements for prosecuting the appeal, including filing the record of appeal and written submissions, and did not attend the scheduled mention. Consequently, the application for review was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
FAMILY DIVISION
CIVIL APPEAL NO. 60 OF 2017
RACHEL WAMBUI....................................................1ST APPELLANT
MARY NJERI.............................................................2ND APPELLANT
ANN WAIRIMU..........................................................3RD APPELLANT
VERSUS
LOUIS KAMBO...............................................................RESPONDENT
RULING
1. It is trite that in order to obtain a review an applicant has to show to the satisfaction of the court that there has been discovery of new and important matter or evidence which was not within his knowledge or could not be produced at the time when the order to be reviewed was made; or that there was a mistake or error apparent on the face of the record; or that there is any other sufficient reason to enable review (Tokesi Mambili & Others –v- Simion Litsanga, Civil Appeal No. 9 of 2001 at Kisumu).
2. The appeal herein was on 15th November 2018 found to be incompetent. This was because, although filed on 1st September 2017, the appellants had not filed a record of appeal, and had not listed the matter for directions as required under section 79B of the Civil Procedure Act and Order 45 rule 1 of the Civil Procedure Rules. Further, under section 79G of the Act the decree and order appealed from were not filed.
3. Secondly, on 17th July 2018 I directed the parties to, instead of spending time on the application, deal with the appeal by filing written submissions on the same within 14 days. The filing was to be simultaneous. On the day the orders were made the parties were represented. The appellants took no action to file the submissions. The appeal was mentioned on 27th September 2018 for highlighting of the submissions. The appellants had notice. They did not attend, and neither did their advocate.
4. In short, there is no material or basis upon which this court can exercise its discretion to recall and review the orders that were given on 15th November 2018 when the appeal was dismissed with costs. There is no evidence that has been presented. No error or mistake have been demonstrated.
5. The application is consequently dismissed with costs.
DATED and SIGNED at Nairobi this 19TH day of FEBRUARY 2019
A.O. MUCHELULE
JUDGE
DATED and DELIVERED at Nairobi this 21ST day of FEBRUARY 2019
ALI-ARONI
JUDGE