[2003] KEHC 685 (KLR)
The court held that annexing the order or decree sought to be reviewed is a mandatory procedural requirement under Order XLIV of the Civil Procedure Rules. Without such annexure, the court cannot determine whether the applicant is aggrieved by the order or decree, and thus cannot entertain the application for...
Source-derived case information.
- Citation
- [2003] KEHC 685 (KLR)
- Parties
- Plaintiff: Wilson Saina; Defendant: Joshua Cherutich trading as Cherutich & Company Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- ? 259 of 2001
- Procedural Posture
- Civil Case / Ruling on Application for Review
- Outcome
- Defendant's application struck out with costs to the Plaintiff.
- Judges
- ARM Visram
- Legal Topics
- Review of Court Orders, Procedural Defects, Annexing Decree Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilson Saina
Plaintiff
Joshua Cherutich trading as Cherutich & Company Limited
Defendant
Procedural Posture
Civil Case / Ruling on Application for Review
Legal Issues
- 1 Whether failure to annex the order or decree sought to be reviewed renders the application for review fatally defective.
Ratio Decidendi
The court held that annexing the order or decree sought to be reviewed is a mandatory procedural requirement under Order XLIV of the Civil Procedure Rules. Without such annexure, the court cannot determine whether the applicant is aggrieved by the order or decree, and thus cannot entertain the application for review. The court relied on precedent and agreed with the reasoning in Gatimu Farmers Ltd. v. John Njoroge Ndungu, striking out the Defendant's application as fatally defective for failure to comply with this requirement.
Court Disposition
Defendant's application struck out with costs to the Plaintiff.
Orders
- The Defendant’s application dated October 31, 2001 is struck out.
- Costs awarded to the Plaintiff.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL CASE NO. 259 OF 2001 (O. S.)
WILSON SAINA…………………………………...……………..PLAINTIFF
VERSUS
JOSHUA CHERUTICH trading as
CHERUTICH & COMPANY LIMITED …………………….DEFENDANT
RULING
This is an application under Order XLIV Rule 1(1) and 2 and Order XXXVI Rule 12 of the Civil Procedure Rules (hereinafter referred to as “the Rules”) and Sections 3A and 63(e) of the Civil Procedure Act. In the main, the Defendant seeks the following order:
“3. THAT this Honourable Court be pleased to review and vacate or set aside its orders made on October 19, 2001 to the extent that they required the Defendant to deposit Kshs. 155,361/= in Court within 30 days.”
Mr. Karanja who argued the application on behalf of the Plaintiff raised two points of law one which, in my view, is central to the determination of the application. Primarily, he submitted that the failure of the Defendant to annex the order sought to be reviewed rendered the whole application fatally defective.
I respectfully agree. In order to succeed on an application for review under Order XLIV of the Rules, one must show that he is aggrieved by a decree or an order. This cannot be done without annexing the decree or order for the Court to determine that point. I, therefore, agree with my Learned Sister the Honourable Lady Justice Jessie Lesiit’s conclusion in Gatimu Farmers Ltd. v. John Njoroge Ndungu NAKURU HCCC 197/01 that failure to annex the order or decree sought to be reviewed renders an application for review fatally defective. On this conclusion alone, I do not see the need to consider the Defendant's application further as no useful purpose will be achieved thereby.
I, therefore, strike out the Defendant’s application dated October 31, 2001 with costs to the Plaintiff.
Dated and Delivered at Nakuru this 17th day of September, 2003.
ALNASHIR VISRAM
JUDGE