[2022] KEELC 3164 (KLR)
The court found that there was indeed an error apparent on the face of the record, as the ruling delivered on 24/1/2022 addressed the wrong application. Instead of ruling on the preliminary objection as previously directed, the court ruled on the application dated July 16, 2021. Given that the substantive case had...
Source-derived case information.
- Citation
- [2022] KEELC 3164 (KLR)
- Parties
- Plaintiff: Son Hardware Ltd; Defendant: Development Bank of Kenya, Ltd; Defendant: Joseph M Gikonyo T/A Garam Investments Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kajiado
- Jurisdiction
- Kenya
- Case Number
- Cause 10 of 2021
- Procedural Posture
- Cause / Ruling on Application to Reinstate Previous Order
- Outcome
- Application allowed; order of 19th August, 2021 reinstated; costs in the cause.
- Judges
- MN Gicheru
- Legal Topics
- Error on Face of Record, Reinstatement of Orders, Status Quo Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Son Hardware Ltd
Plaintiff
Development Bank of Kenya, Ltd
Defendant
Joseph M Gikonyo T/A Garam Investments Auctioneers
Defendant
Procedural Posture
Cause / Ruling on Application to Reinstate Previous Order
Legal Issues
- 1 Whether there was an error apparent on the face of the record regarding the ruling delivered on 24/1/2022.
- 2 Whether the order of 19th August, 2021 should be reinstated or re-issued.
- 3 Whether the application constitutes an abuse of court process due to multiplicity of applications.
Ratio Decidendi
The court found that there was indeed an error apparent on the face of the record, as the ruling delivered on 24/1/2022 addressed the wrong application. Instead of ruling on the preliminary objection as previously directed, the court ruled on the application dated July 16, 2021. Given that the substantive case had not yet been heard and there were unresolved factual disputes regarding the properties and alleged lack of notification of sale, the court determined that it was fair and just to allow the application and reinstate the order of 19th August, 2021. The court emphasized the right to a fair hearing under Article 50(1) of the Constitution and held that maintaining the status quo was...
Court Disposition
Application allowed; order of 19th August, 2021 reinstated; costs in the cause.
Orders
- The application dated 2/2/2022 is allowed.
- The order of 19th August, 2021 is reinstated or re-issued.
Full Case Text
Judgment text and source record
18 paragraphs
Son Hardware Ltd v Development Bank of Kenya, Ltd & another (Cause 10 of 2021) [2022] KEELC 3164 (KLR) (14 June 2022) (Ruling)
Neutral citation: [2022] KEELC 3164 (KLR)
Republic of Kenya
In the Environment and Land Court at Kajiado
Cause 10 of 2021
MN Gicheru, J
June 14, 2022
Between
Son Hardware Ltd
Plaintiff
and
Development Bank of Kenya, Ltd
1st Defendant
Joseph M Gikonyo T/A Garam Investments Auctioneers
2nd Defendant
Ruling
1. This ruling is on the application dated 2/2/2022 which seeks one main prayer namely;a.That the order of 19th August, 2021 issued by Hon. Justice Angote be re-issued or reinstated.There are various grounds on which the application is based. The main one is that there is an error apparent on the face of the record in that instead of the Court making a ruling on the Preliminary Objection, as it had earlier directed, it ruled on the application dated July 16, 2021. The application is supported by an affidavit by the Applicant’s director dated 2/2/2022 in which he highlights the error made by the Court.There is a supplementary affidavit which answers the Respondent’s replying affidavit sworn by Silas Aluku and dated 25/2/2022. The gist of the Respondent’s affidavit is that the application by the Applicant is an abuse of the Court process because of the Plaintiff’s penchant of filing a multiplicity of applications to circumvent the doctrine of res judicata.I have carefully considered the application in its entirety, including the affidavits and the entire record and I find that, it is fair and just to allow the application and order that the status quo be maintained.The reasons for making this order is that so far, this case has not been heard. It has emerged that there are two different plots offered by the Applicant namely, Ngong/Ngog/24258 and 33632. It is alleged that in regard to one of them, there was no notification of sale. It is also alleged that no money was advanced to the Plaintiff and that what happened is that the first Defendant breached the original arrangement between it and the Plaintiff.Under Article 50 (1) of the Constitution, a party to a dispute has the right to a fair hearing by a Court. There is an error on the face of the record as to which application the ruling of 24/1/2022 related to between the preliminary objection dated 21/9/2022 and the one dated 16/7/202. I therefore allow the application dated 2/2/2022. Costs in the cause.
DATED SIGNED AND DELIVERED VIRTUALLY AT KAJIADO THIS 14TH DAY OF JUNE, 2022. M.N. GICHERUJUDGE