S W N v N G [2017] KEHC 991 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL CASE NO. 86 OF 2008 (OS)

IN THE MATTER OF DIVISION OF MATRIMONIAL PROPERTY

IN THE MATTER OF SECTION 17 OF THE MARRIED WOMEN'S PROPERTY ACT

S W N.........................PLAINTIFF/RESPONDENT

VERSUS

N G............................. DEFENDANT/APPLICANT

R U L I N G

1. This is a ruling on the application dated 2/03/2017 seeking for review and/or setting aside this court's ruling delivered on 7/02/2017 dismissing this suit for want of prosecution.

2. The application is grounded on the affidavit of the applicant S W N in which she deposes that the suit was delayed by her advocate who was on record then.

3. The respondent opposed the application on grounds that both parties were heard before the court gave its ruling. It is also deposed that the applicant has filed a notice of appeal against the said ruling and is at the same time seeking for review of the same ruling which is not proper.

4. This application is brought under Order 51 Rule 4 of the Civil Procedure Rules (CPR). Order 51 Rule 4 states:-

Every notice of motion shall state in general terms the grounds of the application, and where any motion is grounded on evidence by affidavit, a copy of any affidavit intended to be used shall be served.

5. This provision is a general one on the content of an application. The applicant is required to state the specific law under which he/she brings his/her application. He has not done so and has relied on the wrong provisions of the law.

6. An application for review should be brought under Order 45 Rule 1 of the CPR. This is the correct law which the applicant ought to have used considering that his application is purely for review and has no other prayer. Regrettably, the application was drafted by an advocate who totally disregarded the law.

7. However, the court ought to concern itself more on the substance of the application rather than the form. The relevant provision in an application for review is Order 45 Rule 1(1)(a) and (b) provides:-

(1) Any person considering himself aggrieved—

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or

(b) by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passedor the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.

8. An application for review is available for a party who has not preferred an appeal. The applicant filed a notice of appeal on 9/02/2017 about seven days after filing his application. It was withdrawn about a month later on 8/03/2017. Based on the withdraw, the court presumes that there is no appeal and will therefore proceed with the application for review.

9. In an application of this nature, the applicant is required to show the following:-

(a) That since the issue of the orders sought to be reviewed, there is discovery of new and important matters;

(b) Or that there is a mistake or error apparent on the face of the record;

(c) Or, that there exists other sufficient reason for reviewing the orders.

10. The applicant has not raised any new evidence or important matter. He has not pointed out any error or mistake apparent on the face of the record. This shows that the application is not based on the first two grounds.

11. As for the last requirement, it is important to examine the grounds supporting the application. The supporting affidavit consists of only one ground, that of delay by the applicant's advocate. He is said to have stopped going to court to follow up the case for the applicant to later discover that the case was dismissed.

12. This ground was dealt with exhaustively in the court's ruling which ordered the dismissal of the case. It cannot be a sufficient reason for review and as such the requirement for proof of “sufficient cause” fails.

13. It is my considered opinion this application does not satisfy the test laid down in Order 45 Rule 1. It is in fact an abuse of the due process of the court.

14. The respondent in its affidavit raises the issue of costs of the earlier application dated 29/10/2014. This was on the basis of an application dated 28/03/2017 in which the respondent seeks for review of the court's order that each party meets its own costs. The applicant did not file a reply to this application.

15. It is grounded on the respondent's affidavit which states that the applicant and himself were never husband and wife as the court may have assumed thus denying the respondent costs of the suit.

16. The court observed as follows in its ruling:-

“As for costs, it is noted from the pleadings that the parties were husband and wife or were cohabiting together.”..... Given this scenario, it would therefore be inappropriate to condemn the respondent (applicant herein) to meet the costs of this suit.

17. The court is making the order for costs did not only rely on the presumption of marriage from the pleadings. It also included the alternative of the parties having been in cohabitation. There was also a third reason based on the way the applicant's advocate handled the case.

18. For the foregoing reasons, the respondent's application dated 28/03/2017, though not opposed cannot stand.

19. I find the two applications dated 2/03/2017 and 28/03/2017 lacking merit. I dismiss them accordingly and each party shall meet their own costs.

20. It is hereby so ordered.

DATED, DELIVERED AND SIGNED THIS 6TH DAY OF DECEMBER, 2017.

F. MUCHEMI

JUDGE

In the absence of the parties