[2005] KEHC 2470 (KLR)
The court found that the applicant failed to provide any affidavit to support the claim that she did not consent to the order, nor did her advocate file an affidavit to that effect as previously directed by the court. The only material before the court was submissions from the bar, which do not constitute evidence....
Source-derived case information.
- Citation
- [2005] KEHC 2470 (KLR)
- Parties
- Appellant: Teresa Moraa Anuri; Respondent: Patrick Anuri Marasi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 44 of 1993
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Consent Order
- Outcome
- application dismissed with costs
- Legal Topics
- Divorce Proceedings, Consent Orders, Review of Judgments
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Moraa Anuri
Appellant
Patrick Anuri Marasi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Consent Order
Legal Issues
- 1 Whether the consent order entered on 31st July 1995 could be reviewed and set aside for lack of consent by the applicant.
- 2 Whether failure to file a supporting affidavit invalidated the application for review.
Ratio Decidendi
The court found that the applicant failed to provide any affidavit to support the claim that she did not consent to the order, nor did her advocate file an affidavit to that effect as previously directed by the court. The only material before the court was submissions from the bar, which do not constitute evidence. The court held that the absence of a supporting affidavit was fatal to the application, and there was no evidence to show that the applicant did not consent to the order. The omission by the court to record what counsel for the applicant said was not sufficient to set aside the consent order. Accordingly, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review and setting aside of the consent order is dismissed with costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII
Civil Appeal 44 of 1993
TERESA MORAA ANURI ………………………………………… APPELLANT
VERSUS
PATRICK ANURI MARASI …………….…………………….. RESPONDENT
RULING
The respondent had appealed against the findings and judgment of District Magistrate Nyamira in a Divorce Cause. On 31st July 1995 both counsels for the appellant and the Respondent appeared before Justice Mbaluto (as then was). The counsel for the appellant addressed the court and then the following order was recorded:
“Order:-
By consent appeal allowed and the decision of the learned
District Magistrate set aside. Each Party to bear his/her own
Costs here and in the court below.”
It is the above order that the applicant who is the respondent in the appeal seeks to he reviewed and set aside. The ground supporting the application is that there was an error of law in the face of the record in that it purports to have been made by consent of the parties without the applicants consent.
Mr. Bosire who argued the application said the court did not record anything Mr. Nyasimi who was for the respondent said. He said that the applicant had not given any instructions to his counsel to consent. He said parties should have signed the consent order.
Application was opposed. It was submitted that there was no supporting affidavit filed as required by order 50 Rules.
I have carefully considered the application . As submitted there is no affidavit supporting the application. Order 50 rules 3 CPR do not expressly states that every motion shall be supported by an affidavit unless where there is a ground of evidence otherwise on grounds supporting the motion would suffice. In this case there is only one ground to support the motion. Applicant states that the consent order contains an error of law on record. However the court was not told which law is referred to. The only thing stated is that the applicant did not consent to the order. That is not an issue of law but of fact. The applicant who is the one alleging that he did not give instruction to his counsel ought to have sworn an affidavit on oath and say that he did not give such instructions.In absence of such an affidavit we only have submission from the bar about such instructions.
There is not even an affidavit from Mr. Nyasimi who was the advocate for the applicant to state that he had no instruction. The court had directed that he do so way back in 1996. If he had had refused to do so the applicant should have sworn and filed an affidavit to that effect.
Thus though the record does not show what counsel for the applicant said on 31/7/95 there is also nothing to show that he did not consent to the order recorded. He was present representing the applicant. Indeed it is desirable for the court to record what all the parties states but that omission above is not fatal.
I therefore find application has no merit. It is dismissed with costs.
Dated this 12th day of April 2005
KABURU BAUNI
JUDGE
c.c. Mobisa
Respondent present
N/A for Appellant