[2015] KEHC 3591 (KLR)
The court found that the applicant failed to demonstrate any error apparent on the face of the record in the order dated 30.9.2014. The alleged injunction in the lower court was not against the respondent society but against an individual, and no evidence of such an injunction was provided. Furthermore, the...
Source-derived case information.
- Citation
- [2015] KEHC 3591 (KLR)
- Parties
- Applicant: Joseph Mbugua Hosea; Respondent: Turbo Munyaka Co-operative Society Ltd
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 58 of 2014
- Procedural Posture
- Review Application / Ruling on Application for Review of Court Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- EO Obaga
- Legal Topics
- Review of Court Orders, Error Apparent on Record, Injunctions, Delay in Filing, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mbugua Hosea
Applicant
Turbo Munyaka Co-operative Society Ltd
Respondent
Procedural Posture
Review Application / Ruling on Application for Review of Court Order
Legal Issues
- 1 Whether there is an error apparent on the face of the record warranting review of the court order dated 30.9.2014.
- 2 Whether the application for review was filed without unreasonable delay.
- 3 Whether the existence of an injunction in a related lower court case constitutes a ground for review.
Ratio Decidendi
The court found that the applicant failed to demonstrate any error apparent on the face of the record in the order dated 30.9.2014. The alleged injunction in the lower court was not against the respondent society but against an individual, and no evidence of such an injunction was provided. Furthermore, the application for review was filed four months after the order, and no explanation was given for the delay. The court held that the delay was unreasonable and that the grounds advanced did not meet the threshold for review under Order 45 of the Civil Procedure Rules. Consequently, the application was found to be misconceived and was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The applicant's application for review is dismissed.
- The applicant shall pay costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
ELC. NO.58 OF 2014
TURBO MUNYAKA CO-OPERATIVE SOCIETY LTD.........RESPONDENT
VERSUS
JOSEPH MBUGUA HOSEA............................................APPLICANT
R U L I N G
1. The applicant brought a notice of motion dated 30. 1.2015 in which he seeks review of the order of this court given on 30. 9.2014. The applicant contends that there is an error apparent on the face of the record. The applicant further contends that there is a related case in the lower court where he obtained an order restraining the respondent from interfering with the suit land and that in this present case, the respondent has obtained orders restraining him from interfering with the suit land.
2. The application is opposed based on grounds of opposition filed by the respondent on 23. 4.2015. The respondent contends that the applicant's application is incompetent and fatally defective. The respondent also contends that the application has been brought after inordinate delay and that the same is an abuse of the process of the court.
3. I have considered the applicant's application as well as the grounds of opposition and submissions by the counsel for the applicant. The orders which the applicant seeks to have reviewed were given on 30. 9.2014. This application was filed on 30. 1.2015. The application was made four months after the said orders were made. In the absence of any explanation as to why the same was not made in good time, I find that the delay to bring this application promptly was unreasonable in the circumstances.
4. The applicant contends that there is an error apparent on the face of the record. No such error was pointed out. The applicant has instead claimed that he obtained an injunction against the respondent in the lower court. I have gone through the annextures to the applicant's application. I cannot see any evidence of injunction issued against the respondent. The case in the lower court was between the applicant and Onesmus Gichiri Njoroge as an individual. The suit was never against the respondent as a society. In any case even if there was an injunction issued in favour of the Applicant, the same can neither amount to an error apparent on the face of the record nor a ground for review of the orders of this court given on 30. 9.2014.
5. I find that the applicant's application is misconceived. The same is hereby dismissed with costs to the respondent.
It is so ordered.
Dated, signed and Delivered at Kitale on this 17th day of June, 2015.
E. OBAGA
JUDGE
In the presence of Mr. Chebii for applicant and Mr Kisa for Respondent. Court Clerk - Isabellah.
E. OBAGA
JUDGE