[2002] KEHC 1275 (KLR)
The court found that the application was fundamentally incompetent because it invoked a non-existent rule (Order IXB Rule XLIV) under the Civil Procedure Act and Rules. Furthermore, the application failed to annex the decree or order sought to be reviewed, which is a mandatory requirement in law for such...
Source-derived case information.
- Citation
- [2002] KEHC 1275 (KLR)
- Parties
- Plaintiff: Trust Bank Limited; Defendant: Geoffrey Makana Asanyo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 118 of 1998
- Procedural Posture
- Civil Case / Ruling on Application for Stay, Review, and Setting Aside of Judgment
- Outcome
- application dismissed with costs
- Judges
- T Mbaluto
- Legal Topics
- Review of Judgment, Stay of Execution, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trust Bank Limited
Plaintiff
Geoffrey Makana Asanyo
Defendant
Procedural Posture
Civil Case / Ruling on Application for Stay, Review, and Setting Aside of Judgment
Legal Issues
- 1 Whether the application for review and stay of execution is competent in law.
- 2 Whether the application properly invoked the relevant provisions of the Civil Procedure Act and Rules.
- 3 Whether the failure to annex the decree or order sought to be reviewed is fatal to the application.
Ratio Decidendi
The court found that the application was fundamentally incompetent because it invoked a non-existent rule (Order IXB Rule XLIV) under the Civil Procedure Act and Rules. Furthermore, the application failed to annex the decree or order sought to be reviewed, which is a mandatory requirement in law for such applications. Without the extracted and annexed decree or order, there was nothing before the court to review. These procedural defects rendered the application misconceived and incompetent, necessitating its dismissal with costs.
Court Disposition
application dismissed with costs
Orders
- The application is dismissed with costs.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO. 118 OF 1998
TRUST BANK LIMITED……………………………….PLAINTIFF
VERSUS
GEOFFREY MAKANA ASANYO………........……...DEFENDANT
RULING
This application is stated to have been brought under 0. IXB Rules XLIV (sic) of the Civil Procedure Act. It seeks amongst other reliefs, an order of stay of execution pending the hearing and determination of the application; the review of the judgment and decree herein; the setting aside and/or vacation of the judgment as well as the dismissal of the suit with costs.
The first observation I wish to make regarding the application is that there is no. 0. IXB Rule XLIV in our Civil Procedure Act or the Rules made thereunder and it is therefore clear that a non-existent rule has been invoked in support of the application thereby rendering it hopelessly incompetent. The second point is that it is trite law that in an application for the review of a decree or order, the decree or order sought to be reviewed should not only be extracted but should also be annexed to the application. Since no such decree has been extracted or annexed to this application, there is in law nothing to review.
The application is for the above reasons incompetent and misconceived and must be dismissed with costs. It is so ordered.
Dated at Nairobi this 17th day of December, 2002.
T. MBALUTO
JUDGE