[2018] KEELC 576 (KLR)
The court found that the applicant failed to satisfy the requirements for review under Order 45 of the Civil Procedure Rules. The applicant's grievances related to the court's assessment of facts and alleged misapprehension do not constitute an error apparent on the face of the record or discovery of new and...
Source-derived case information.
- Citation
- [2018] KEELC 576 (KLR)
- Parties
- Plaintiff: Rehema Raibuni; Plaintiff: Jane Mpinda; Plaintiff: Mary Alima Raibuni; Plaintiff: Ali Kithinji; Plaintiff: Abdalla Manyara; Interested Party: Joshua Ngatu; Defendant: Mohamed Iqbal Abdul Karim; Defendant: Ramji Devji Patel; Defendant: Mehboob Sale Mohamed Haji; Defendant: Valji Hirji Senghani
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 132 of 2007
- Procedural Posture
- Review Application / Ruling on Application for Review of Court Ruling
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Error Apparent on Record, Reinstatement of Application, Finality of Rulings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rehema Raibuni
Plaintiff
Jane Mpinda
Plaintiff
Mary Alima Raibuni
Plaintiff
Ali Kithinji
Plaintiff
Abdalla Manyara
Plaintiff
Joshua Ngatu
Interested Party
Mohamed Iqbal Abdul Karim
Defendant
Ramji Devji Patel
Defendant
Mehboob Sale Mohamed Haji
Defendant
Valji Hirji Senghani
Defendant
Procedural Posture
Review Application / Ruling on Application for Review of Court Ruling
Legal Issues
- 1 Whether the applicant has established grounds for review under Order 45 of the Civil Procedure Rules.
- 2 Whether the court can revisit its own ruling on the basis of alleged misapprehension of facts.
- 3 Whether the application amounts to an appeal disguised as a review.
Ratio Decidendi
The court found that the applicant failed to satisfy the requirements for review under Order 45 of the Civil Procedure Rules. The applicant's grievances related to the court's assessment of facts and alleged misapprehension do not constitute an error apparent on the face of the record or discovery of new and important matter. The application was deemed to be an appeal in disguise, as the applicant sought to have the court reconsider its own ruling on the merits, which is not permissible under the review jurisdiction. Consequently, the application for review was dismissed as unmerited.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondents (plaintiffs and respondents).
- The file is marked as closed, the case having been settled on 22.5.2018.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT MERU
ELC CASE NO. 132 OF 2007
REHEMA RAIBUNI .................................................................1ST PLAINTIFF
JANE MPINDA..........................................................................2ND PLAINTIFF
MARY ALIMA RAIBUNI ........................................................3RD PLAINTIFF
ALI KITHINJI ...........................................................................4TH PLAINTIFF
ABDALLA MANYARA ............................................................5TH PLAINTIFF
JOSHUA NGATU .......................................................... INTERESTED PARTY
VERSUS
MOHAMED IQBAL ABDUL KARIM .................................1ST DEFENDANT
RAMJI DEVJI PATEL ...........................................................2ND DEFENDANT
MEHBOOB SALE MOHAMED HAJI ............................... 3RD DEFENDANT
VALJI HIRJI SENGHANI......................................................4TH DEFENDANT
RULING
1. The notice of motion filed on 18. 5.2018 is brought under order 45 of the civil procedure rules section 1 A, 1B and 3 A of the civil procedure act and article 159 of the constitution. Applicant is seeking for an order of review of the court’s ruling delivered on 18. 4.2018. He desires that his application which was dismissed be reinstated and the same be heard on merits.
2. The grounds in support of the application are that there are mistakes and error apparent on the face of the record, that the court misapprehended the facts on the face of the record, that the court did not put into consideration the facts as deponed to by the applicant in his affidavit and that applicant feels aggrieved by the ruling of 18. 4.2018. Applicant has further filed a supporting affidavit.
3. The application was opposed by plaintiffs through the affidavit of 2nd plaintiff. Defendants too have opposed the application through the affidavit of the 2nd defendant.
4. For an applicant to succeed under order 45 of the civil procedure act he must satisfy the court that there is discovery of new and important matter, or that there was mistake or error apparent on the face of the record or for any other sufficient reason.
5. I have considered all the argument raised herein. It is clear that applicant was aggrieved by the courts ruling. He has admitted that much. He has averred that the court misapprehended the facts and the court did not put into consideration the facts put forth by the applicant.
6. The application is certainly an appeal in disguise. This court cannot resume the process of determining the previous application all over again simply because the court cannot sit in an appellate forum in respect of its ruling.
7. I therefore find that the application is unmerited. The same is dismissed with costs to respondents (plaintiffs and respondents).
8. The case having been marked as settled on 22. 5.2018, then I direct that this file be marked as closed.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 28th NOVEMBER, 2018 IN THE PRESENCE OF:-
C/A: Kananu
Omari for defendant
Rimita C. for Karanja holding brief for applicants
Kiome for applicant
Applicant
HON. LUCY. N. MBUGUA
ELC JUDGE