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Court of AppealAllowedCivil Appeal No. 57 of 2015· [2017] KECA 611 (KLR)

Sheikh Ali Taib v George Ellam Wekesa & another [2017] KECA 611 (KLR)

Court of Appeal of Kenya
31 March 2017
ASAsike-MakhandiaWilliam OukoW. OukoKMK. M'inoti
3,297 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed that failing to attach a copy of an order to a review application does not invalidate it.

What this practically means

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Executive summary

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The appellant, Sheikh Ali Taib, appealed against two rulings of the Environment and Land Court at Mombasa (Mukunya, J.) in long-running land litigation over Mombasa/Block x/97, Tudor. The first ruling stayed proceedings in HCCC No. 260 of 2003 under sections 5 and 6 of the Civil Procedure Act; the second dismissed the appellant's application for review of that ruling on the sole ground that he had not attached a copy of the order sought to be reviewed, relying on the High Court decision in Stephen Munga Maingi. At the hearing the appellant abandoned all grounds founded on the first ruling, confining the appeal to the second. The central question was whether failure to attach a copy of the order is fatal to an application for review under section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules. The Court held that neither provision imposes such a requirement, following its own decisions in Sadrudin Kurji v Shalimar Ltd and Peter Kirika Githaiga v Betty Rashid, and distinguishing the High Court authorities relied on below. The Court emphasised Article 159(2) of the Constitution, holding that its approach best accords with the command that courts not pay undue regard to technicalities, particularly where there was no dispute as to what the first ruling held. Along the way the Court catalogued what it described as unbridled abuse of court process by the 2nd respondent and her son, including serial ex parte applications and duplicated prayers across two suits. The appeal was allowed: the order of 14th November 2014 was set aside and replaced with an order allowing the appellant's review application, with costs of both the application and the appeal to the appellant. The decision binds lower courts to the rule that non-attachment of the order in a review application is not fatal where the order is available on the court file.

Key legal issues

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Whether failure to attach the order or decree is fatal to an application for review

Holding

It is not fatal. The statutory review provisions contain no such requirement, and where the party can direct the court's attention to the part of the ruling or judgment complained of, the application cannot be rendered fatally defective.

Reasoning

Section 80 of the Civil Procedure Act and Order 45 of the Civil Procedure Rules, which confer review jurisdiction, contain no requirement that the order be attached. This Court in Sadrudin Kurji v Shalimar Ltd and in Peter Kirika Githaiga v Betty Rashid so held, and the High Court authority relied on below, Stephen Munga Maingi, does not stand for that proposition. The contrary High Court decisions were noted but not followed, the view adopted being the one most consistent with Article 159's command against undue regard to technicalities.

p. 5

Legal principles established

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  • Neither section 80 of the Civil Procedure Act nor Order 45 of the Civil Procedure Rules requires an applicant for review to attach the order or decree sought to be reviewed; failure to attach it does not render the application fatally defective where the order is on the court file.

Court orders

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  1. 1.Appeal allowed
  2. 2.Order of the High Court dated 14th November 2014 set aside
  3. 3.Substituted therefor an order allowing the appellant's application dated 30th August 2013
  4. 4.Appellant awarded costs of that application and of this appeal

Authorities

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Legislation

  • Constitution of Kenya, 2010Article 162(2)(b)
  • Constitution of Kenya, 2010Article 159(2)
  • Civil Procedure Actsections 5, 6 and 80
  • Civil Procedure RulesOrder 45
  • Married Women's Property Act, 1882null

Cases cited (5)

  • Sadrudin Kurji & Another v. Shalimar Ltd & 2 Others
    CA No 64 of 2006
  • Stephen Munga Maingi v. The Government of the United States of America & Another
    HCCC No. 1197 of 2005
  • William Saina v. Joshua Cherutich
    HCCC No 259 of 2001 (OS)
  • Suleiman Murunga v. Nilestar Holdings Ltd & Another
    ELCC No. 1549 of 2013
  • Peter Kirika Githaiga & Another v Betty Rashid
    CA No. 210 of 2014
On appeal from
High Court of Kenya at Mombasa (Environment and Land Court)
HCCC No. 454 of 2002 (OS)
Jurisdiction invoked
First appeal to the Court of Appeal against rulings of the High Court (Environment and Land Court established under Article 162(2)(b) of the Constitution)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Sheikh Ali Taib v George Ellam Wekesa & another [2017] KECA 611 (KLR)", Case Analysis (2017). Civil Appeal No. 57 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/611/eng@2017-03-31

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.