[1998] KEHC 237 (KLR)
The court found no error apparent on the face of the record to justify review of the eviction order. The consolidation of the suits and applications was by consent, and both parties had addressed the preliminary issues together. The applicant was aware that eviction would follow an adverse ruling. The court...
Source-derived case information.
- Citation
- [1998] KEHC 237 (KLR)
- Parties
- Plaintiff: Robert Ezekiel Cheruiyot; Defendant: Kenya Co-operative Creameries Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 1761 of 1998
- Procedural Posture
- Civil Case / Ruling on Notice of Motion for Review and Extension of Time
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Court Orders, Eviction Proceedings, Extension of Time, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Ezekiel Cheruiyot
Plaintiff
Kenya Co-operative Creameries Ltd
Defendant
Procedural Posture
Civil Case / Ruling on Notice of Motion for Review and Extension of Time
Legal Issues
- 1 Whether there was an error apparent on the face of the record warranting review of the eviction order.
- 2 Whether the period for vacating the suit premises should be extended beyond 7 days.
- 3 Whether the plaintiff should be restrained from evicting the defendant pending determination of the application.
Ratio Decidendi
The court found no error apparent on the face of the record to justify review of the eviction order. The consolidation of the suits and applications was by consent, and both parties had addressed the preliminary issues together. The applicant was aware that eviction would follow an adverse ruling. The court considered the request for extension of time but found that granting 30 days would be oppressive to the owner of the premises. The court exercised its discretion to maintain the original 7-day period for vacating the premises. Accordingly, the application for review and extension of time was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for review and extension of time is dismissed with costs.
- The applicant shall have 7 days from the date hereof to vacate the premises, failing which eviction shall proceed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL CASE NO. 1761 OF 1998
ROBERT EZEKIEL CHERUIYOT........................................PLAINTIFF
VERSUS
KENYA CO-OPERATIVE CREAMERIES LTD..........................................................DEFENDANT
RULING
On 28th October, 1998 this court ordered under H.C. C. C. NO. 1791 of 1998 that H.C.C.C. NO. 1761 be dismissed; that the defendant do vacate the suit raises within 7 days from the date of the service of the order and that the costs of the application be borne by the defendant.
There is now before me an application by way of Notice of Motion under order 49 Rule 5 and Order 39 Rule 1 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for orders that the order of 28th October 1998 be reviewed on the basis that there is an error apparent on the face of the order; in the alternative that the period within which the applicant should vacate the suit premises be extended to at least 30 days from the ate of service of the order; and that the plaintiff/respondent be restrained from evicting the defendant/applicant until this application is heard and finalised.
The grounds upon which the application is based have been set out and there is an affidavit in support thereof sworn by one Robert E. Cheruiyot, the applicant.
The learned counsel for the plaintiff/respondent field grounds of opposition. Both learned counsel have also addressed the court on the issues.
It will be recalled that the two suits were consolidated on 24th July, 1998 when both learned counsel appeared before Aganyanya J. The order was by consent. My understanding of the said order was that even the applications in the said suits were consolidated. Indeed when the preliminary point of law was raised both learned counsel addressed the two applications with that in mind. When the court delivered its ruling on 28th October, 1998 the issue was also addressed. The contents of the said ruling are clear and unequivocal.
With respect therefore, there is no room to say that the application for eviction was not argued. I see no error apparent n the face of the record. I note also that order 44 of the Civil Procedure Rules under which such an order can be reviewed was not cited, it, would not leave altered my finding herein.
The applicant has known all along that if he were to lose his application in favour of the plaintiff, eviction would follow. I have noted the prayer for extention of time. But justice must look at both sides. I have weighed one thing against the other and doing the best I can I consider the extention of time by 30 days to be oppresive to the owner of the premises. Accordingly that prayer also fails but the applicant shall have 7(seven) days to vacate the premises from the date hereof otherwise he shall be evicted accordingly.
The upshot is that the application is hereby dismissed with costs.
Orders accordingly.
Dated at Nairobi this 13th day of November, 1998.
MBOGHOLI MSAGHA
JUDGE