[2017] KEHC 483 (KLR)
The court found that the applicant failed to meet the requirements for review under Order 45 of the Civil Procedure Rules. The death of the 2nd defendant occurred after the suit had already been struck out and thus did not constitute new evidence relevant to the dismissal. The sale agreement relied upon by the...
Source-derived case information.
- Citation
- [2017] KEHC 483 (KLR)
- Parties
- Plaintiff: Sammy Philip Mbugua; Defendant: Esther Wangari Ng'ang'a; Defendant: Veronica Gathoni Ngigi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 125 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Review of Dismissal Order
- Outcome
- application dismissed
- Judges
- JK Mulwa, CC Kipkorir
- Legal Topics
- Review of Judgment, Stay of Execution, Statute of Limitations, Striking Out of Suit
- 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
Sammy Philip Mbugua
Plaintiff
Esther Wangari Ng'ang'a
Defendant
Veronica Gathoni Ngigi
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Review of Dismissal Order
Legal Issues
- 1 Whether the applicant has met the threshold for review of the court's dismissal order under Order 45 of the Civil Procedure Rules.
- 2 Whether the death of the 2nd defendant after the suit was struck out constitutes new evidence justifying review.
- 3 Whether the sale agreement dated 3rd March 2006 qualifies as new evidence for purposes of review.
Ratio Decidendi
The court found that the applicant failed to meet the requirements for review under Order 45 of the Civil Procedure Rules. The death of the 2nd defendant occurred after the suit had already been struck out and thus did not constitute new evidence relevant to the dismissal. The sale agreement relied upon by the applicant was already within his knowledge at the time of filing the suit, as he was a party to it, and therefore could not be considered new evidence. The court further noted that the applicant had not appealed the dismissal order and that similar applications had previously been found to lack merit. Consequently, the application was dismissed for want of merit, with no orders as...
Court Disposition
application dismissed
Orders
- The Notice of Motion application dated 13th April 2017 is dismissed.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
CIVIL CASE NUMBER 125 OF 2011
SAMMY PHILLIP MBUGUA..................................PLAINTIFF
VERSUS
ESTHER WANGARI NG'ANG'A..................1ST DEFENDANT
VERONICA GATHONI NGIGI....................2ND DEFENDANT
RULING
1. This applicant Sammy Philip G. Mbugua in his application dated 13th April 2017 seeks an order of stay of execution of the decree and revival of the suit. He further seeks that the court be pleased to review or vary its ruling made on the 8th March 2013. The said ruling of 8th March 2013 (H. Omondi J) struck out the applicant’s suit with costs to the defendants, for reasons that the suit was barred by statute of limitation, and by a null and void contract that the court could not enforce.
2. By a ruling dated 7th April 2017 by this court, I found that as there was no competent suit on record the same having been struck out on the 8th March 2013, I could not grant the applicant an order to extend time for him to respond to an application that the suit was Res judicata.This was upon his notice of motion dated 21st April 2016.
3. The applicant by the present application seeks an order of Review, of the dismissal order of the suit. It is brought under numerous legal provisions save for the correct Order 45 of Civil Procedure Rules.Though ignorance of the law is not a defence, the applicant acting in person may be excused by quoting irrelevant legal provisions of the law. (See Article 159(2) (d) of the Constitution.
4. I have considered the reasons in support of the application.
One is that the 2nd defendant died before the conclusion of the suit. The other is that the applicant stands to suffer irreparable loss and damage if orders of review are not granted.
5. The Respondent opposes the application by Replying Affidavit sworn on the 2nd May 2017 by Githui Advocate. It is evident that the applicant’s suit was struck out as being incompetent and an abuse of the court process on the 8th March 2013.
The fact of the 2nd defendant having died on the 22nd October 2013 long after the suit was struck out cannot be termed as new evidence to qualify for a Review of the striking out order.
6. This application is by the plaintiff. The new evidence alleged is a sale agreement dated 3rd March 2006. I have looked at the said agreement (SPGMI). It was executed between the applicant and the 2nd Respondent.
The applicant was party to the agreement. It cannot be said that the applicant did not know about the sale agreement during and before the filing of the suit. It cannot meet the requirements of an application for review. Having signed the same, its contents were well known to him, there having been no fraud, misrepresentation or mistake by either party.
7. I have noted that the applicant failed to appeal against the dismissal order of the suit presently, there is no suit standing. Similar applications were filed and the courts found no merit in the applications.
This is but another attempt to circumtwist the court to set aside the dismissal order upon no good grounds. (Order 45 of Civil Procedure Rules).
A land case may be emotive but this alone will not persuade a court to set aside orders granted upon hearing with participation of parties unless new evidence or other plausible reasons are presented to the court.
8. For those reasons, I find no merit in the Notice of Motion application dated 13th April 2017.
It is dismissed with no orders as to costs.
Dated and Signed this 29th Day of September 2017.
J.N. MULWA
JUDGE
Delivered on this 12th Day of October 2017.
R. LAGAT KORIR
JUDGE