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ELCDismissedNot stated in the judgment· [2017] KEELC 2138 (KLR)
Henry Muriira Kirubua & another v Lucia Ngiti & 4 others [2017] KEELC 2138 (KLR)
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#What this practically means
#Executive summary
#This ruling disposed of an application for review under Order 45 rule 1 of the Civil Procedure Rules, in which the 2nd Plaintiff, Solomon Mpekethu, sought to have a judgment entered on 12:11:15 set aside. The applicant argued that there was no contradiction in the affidavits of service relating to service effected on 21:08:2014 and 22:10:15, and that there was an apparent error on the face of the record. He averred that the service of October 2015 related only to the 2nd Defendant, Paul Riingu, and that the process server never stated he had effected service on the 4th and 5th Defendants, the former having died in September 2015 and the latter having left the suit premises. Counsel for the applicant cited Odunga's Digest on Civil Case Law and Procedure, quoting that a judge's discretion on review is unlimited except that any variation must be on just terms. The court, per L. N. Mbugua J, perused the record and found that the contents of the return of service were entirely captured in the body of the judgment, and that the judge was not dealing with the returns of service of 21:08:2014 or 22:10:15. Noting that the testimony of PW1 remained at variance with the return of service for the hearing notice dated 22:07:15, the court held there was no apparent error on the face of the record. The application for review was found unmerited and dismissed. No costs order was expressly recorded; the parties were absent at delivery.
Key legal issues
#01
Whether an apparent error on the face of the record existed to warrant review under Order 45 rule 1
Holding
No such error existed; the return of service in question was already captured in the judgment, and the application was unmerited
Reasoning
The court perused the record and found the contents of the return of service were fully captured in the judgment. The judge whose judgment was sought to be reviewed had not been dealing with the returns of service of 21:08:2014 or 22:10:15, so no apparent error arose. The testimony of the 2nd Plaintiff remained at variance with the return of service regarding the hearing notice dated 22:07:15, which did not establish a ground for review.
p. 1
Legal principles established
#- A judge's discretion to vary a judgment on review is limited only by the requirement that the variation be on just terms
Court orders
#- 1.The application for review is dismissed
- 2.No order as to costs is recorded
- Jurisdiction invoked
- Order 45 rule 1 of the Civil Procedure Rules (review jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Henry Muriira Kirubua & another v Lucia Ngiti & 4 others [2017] KEELC 2138 (KLR)", Case Analysis (2017). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/2138/eng@2017-07-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.