[2007] KEHC 604 (KLR)
The court held that the application for review was fatally defective because the applicant failed to extract and annex the order sought to be reviewed, a mandatory procedural requirement in review applications. The court emphasized that compliance with procedural rules is essential, and the omission could not be...
Source-derived case information.
- Citation
- [2007] KEHC 604 (KLR)
- Parties
- Plaintiff: Sheva Hotels Ltd; Defendant: Amina Hassan Yaa
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 70 of 2006
- Procedural Posture
- Civil Suit / Ruling on Application for Review of Interlocutory Orders
- Outcome
- application dismissed with costs to the respondent
- Judges
- CA Ombija
- Legal Topics
- Review of Court Orders, Interlocutory Judgment, Leave to Defend, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sheva Hotels Ltd
Plaintiff
Amina Hassan Yaa
Defendant
Procedural Posture
Civil Suit / Ruling on Application for Review of Interlocutory Orders
Legal Issues
- 1 Whether the applicant is entitled to review of the orders issued on 23rd November 2006.
- 2 Whether failure to extract and annex the order sought to be reviewed is fatal to the application.
- 3 Whether the delay in bringing the application for review is excusable.
Ratio Decidendi
The court held that the application for review was fatally defective because the applicant failed to extract and annex the order sought to be reviewed, a mandatory procedural requirement in review applications. The court emphasized that compliance with procedural rules is essential, and the omission could not be excused. The court also noted the unexplained delay in bringing the application. Consequently, the application was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application for review is dismissed.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL SUIT 70 OF 2006
SHEVA HOTELS LTD ……………………….….….PLAINTIFF
VS
AMINA HASSAN YAA …………………………..DEFENDANT
R U L I N G
By an application by way of Notice of Motion, pursuant to the provisions of Order XLIV of the Civil Procedure Rules, dated 1st March 2007, the applicant seeks orders:
1)That this Honourable Court do review the orders issued by the Honourable Justice Ouko on 23RD November, 2006 and the defendant be allowed unconditional leave to defend.
2)That the defendant’s defence dated 15th January 2007 already filed herein be deemed to be properly on record.
3)That the costs of this application be provided for.
The application is grounded, inter-alia, on the grounds that:
a)The learned Judge having found that interlocutory judgment had been irregularly obtained by the plaintiff/respondent by virtue of Order IX Rule 1 of the Civil Procedure Rules, it is clear that the applicant was at liberty to file a defence anytime before final judgment without leave or conditions.
b)The plaintiff’s wrongful act in irregularly obtaining interlocutory judgment cannot be visited upon the defendant.
c)The said ruling would unfairly penalize the applicant when the fault it is obvious lies with the respondent.
d)It is in interest of justice that the said ruling be reviewed.
e)The applicant has other sufficient reason and desire to obtain a review.
The application is predicated upon the annexed affidavit of Amina Hassan Yaa sworn on he 1st day of March 2007.
For the applicant it was argued that, on the 23rd November 2006, Justice Ouko delivered a ruling setting aside interlocutory judgment which had been entered on 24th March 2006. Equally the learned judge refused to grant unconditional leave to defend yet no conditions were given.
Last but not least, the fact that the learned Judge did find that judgment had been entered irregularly means that by virtue of Order IX Rule 1 of the Civil Procedure Rules, the applicant was entitled to file defence before final judgment.
It is significant that the applicant attached the said ruling marked as exhibit “AHYI” instead of an order.
For the respondent it was argued, that the application was made in contravention of the express orders of the court. Leave had been sought in the previous application for leave to defend which leave was rejected.
Moreover, the applicant has failed to extract and attach the order to be reviewed. That in itself is fatal.
Last but not least, the application has been brought after undue delay. In that the decision was made on 23rd November 2006 yet the application was made on 1st March 2007 – a delay of four (4) months. No explanation or reasonable explanation has been given for the delay.
I have carefully analyzed and fully considered all the legal issues raised in this application.
In my view, this application is a non-starter. It is a cliché that in an application for review, it is incumbent upon the applicant not only to extract the decree or order to be reviewed, but also to annex the decree or order to the application. See PROTEN AND FRUIT PROCESSORS LTD – VS – CREDIT BANK LTD & 2 OTHERS: MILIMANI COMMERCIAL COURT CIVIL CASE NO. 1927 OF 1999.
By reason of the fact that the applicant has done neither of these, the application is fatally defective and is for rejection.
Accordingly I dismiss the application with costs to the respondent.
DATED AND DELIVERED AT MALINDI THIS 18TH DAY OF JULY, 2007
N.R.O. OMBIJA
JUDGE
Mr.Opija for Khaminwa} for defendant.
Mr.Mayaka holding brief Mr.Ole Kina Advocate} for applicant.