[2014] KEHC 3406 (KLR)
The court found that the applicant failed to demonstrate any of the grounds required for review or setting aside of the consent orders under Order 45 rule 2 of the Civil Procedure Rules. The applicant did not claim to have been misled or coerced into the consent, nor did she file any protest to the summons for...
Source-derived case information.
- Citation
- [2014] KEHC 3406 (KLR)
- Parties
- Applicant: Regina Wakariti; Respondent: Teresiah Wanja Gacho; Respondent: David Mwangi Macharia
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 83 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Review And/or Setting Aside of Consent Orders
- Outcome
- application dismissed
- Judges
- HI Ong'udi
- Legal Topics
- Review of Court Orders, Consent Orders, Oral Evidence, Confirmation of Grant
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Regina Wakariti
Applicant
Teresiah Wanja Gacho
Respondent
David Mwangi Macharia
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Review And/or Setting Aside of Consent Orders
Legal Issues
- 1 Whether the applicant has established grounds for review or setting aside of the consent orders made on 18th March 2013.
- 2 Whether the applicant is entitled to have the matter heard orally instead of by written submissions.
- 3 Whether the applicant has complied with the procedural requirements for challenging the confirmation of grant.
Ratio Decidendi
The court found that the applicant failed to demonstrate any of the grounds required for review or setting aside of the consent orders under Order 45 rule 2 of the Civil Procedure Rules. The applicant did not claim to have been misled or coerced into the consent, nor did she file any protest to the summons for confirmation of grant. The court was not persuaded that there were any new or important matters, errors, or sufficient reasons to warrant review. The application was therefore found to be without merit and an abuse of the court process.
Court Disposition
application dismissed
Orders
- The application dated 14th May 2013 is dismissed as misplaced and an abuse of the court process.
- The applicant is given 14 days to file and serve her submissions as per the order of 18th March 2013.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
MISC. APPLICATION. NO.83 OF 2007
(FORMALLY MISC. APPL. NO. 29 OF 1994 – NYERI)
REGINA WAKARITI...............................................................APPLICANT
VERSUS
TERESIAH WANJA GACHO..........................................1ST RESPONDENT
DAVID MWANGI MACHARIA.......................................2ND RESPONDENT
R U L I N G
This is the notice of motion dated 14th May 2013 where the Applicant seeks an Order of review and/or setting aside of the Orders made on 18th March 2013. The reason is that there are issues which the Applicant wants this court to hear orally. And the said issues would not adequately be dealt with through written submissions. The Orders complained of were made pursuant to a consent entered into by both Counsels representing both parties. The Applicant’s application is premised on Order 45 rule 2 Civil Procedure Code.
Review may be allowed when any of these circumstances prevail.
i. Discovery of new important matters or evidence which was unknown to the Applicant at the time of the consent.
ii. The presence of a mistake or error apparent on the face of the record.
iii. Any other sufficient reason.
On 7th June 2012 this court vide its Ruling determined three main issues namely;
i. The Applicant was not a wife of the deceased.
ii. The deceased was however the father of her two children Cecilia Wanjiru and Miriam Wahito who are beneficiaries of the deceased’s estate.
iii. The 2nd Respondent was also a beneficiary by virtue of “Purchaser’s interest”.
This Ruling has not been set aside.
The 1st Respondent filed summons for confirmation of grant on 27th June 2012 well within the time lines given by the court. It should be clearly noted that the Applicant herein has not filed any Protest in this matter. On 18th March 2013 the two Counsels agreed to file submissions in respect to the summons for confirmation. Mr. Gacheru for the Respondents filed and served his submissions on 9th April 2013. To date the Applicant has not filed any. Instead she has filed this application dated 14th May 2013. The Respondents filed grounds of opposition dated 20th June 2013. I have considered the rival submissions, affidavits and the material on record. First of all the Applicant has totally failed to place herself within the circumstances of Order 45 rule 2 Civil Procedure Rules.
Secondly she has not even tried to mention that she was duped into entering into the consent she wishes to have reviewed/ and or set aside.
Thirdly she has not filed any Protest to the summons for confirmation filed by the 1st Respondent. This court does not therefore understand the nature of the oral evidence she intends to adduce before it. It is in relation to what?
I therefore find this application to be misplaced and an abuse of the court process. The Applicant is given 14 days within which to file and serve her submissions as per the Order of the court dated 18th March 2013. The Deputy Registrar to fix the matter for mention in the new term for fixing of a date for Ruling if submissions will have been filed.
DATED, SIGNED AND DELIVERED AT EMBU THIS 1st DAY OF AUGUST 2014.
H.I. ONG'UDI
JUDGE
In the presence of:-
Njue/Kirong – c/c
Mr. Ithiga for Gacheru for Respondent
Parties
Abubakar for Applicant