Suleiman Murunga v Nilestar Holdings Liimited & another [2015] KEELC 264 (KLR)
The bottom line
#A Kenyan court dismissed a bid to overturn an injunction because the applicant failed to attach the very order it wanted reviewed.
What this practically means
#Executive summary
#Key legal issues
#Whether failure to annex the order sought to be reviewed is fatal
Yes; the application was fatally defective for want of the annexed order
The court applied its own earlier decision and the authorities of Visram J, Lesiit J and Nyarangi J holding that an applicant under Order 45 must annex the decree or order that aggrieves it. The 2nd Defendant did not annex the order of 14th July 2014 sought to be reviewed, rendering the application unsustainable on that ground alone.
Whether the NLC letter of 18th February 2014 was new and important matter or evidence
No; the letter was not shown to have been delivered before the ruling and probably was generated after it
There was no evidence the letter reached the plaintiff before 23rd July 2014, after the ruling of 14th July 2014. The applicant offered no evidence of earlier service. The letter, which merely revoked the allotment based on the pending court order, introduced no new matter and the Commission lacked the power to revoke the allotment while the matter was pending before the court.
Whether there was an error apparent on the face of the record
No; the court had deliberately considered the Apondi J order and determined it did not preclude the injunction
The court, when granting the injunction, was aware of the order of 4th February 2011 but held the plaintiff and the Commissioner of Lands were not parties to that suit and service was not shown. A conscious decision on an aspect of the matter cannot be an error apparent on the face of the record; the aggrieved party's remedy was appeal, not review.
Legal principles established
#- Failure to annex the formal decree or order sought to be reviewed to an application under Order 45 renders the application fatally defective
- A court cannot review its own conscious decision on an aspect of a matter, as it cannot sit on appeal on its own decision
Court orders
#- 1.The 2nd Defendant's application dated 22nd July 2014 is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Sections 80, 63(e) and 3A of the Civil Procedure Act and Orders 40 Rule 1 and 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- ZACHARIAH KIBURI M’THARANJU v JACOB M’MANYARA[2022] KEELC 2900 (KLR)11 May 2022
Cite this brief
#Cite this brief
Caselaw, "Suleiman Murunga v Nilestar Holdings Liimited & another [2015] KEELC 264 (KLR)", Case Analysis (2015). Not stated in the judgment (references HCCC No. 439 of 2004, a separate matter before Muga Apondi J). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/264/eng@2015-09-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.