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ELCDismissed(not stated in extract; notice of motion dated 25 October 2018)· [2019] KEELC 2681 (KLR)

Margaret Nduta Kamithi & another v Annunciata Waithira Kibue & 2 others [2019] KEELC 2681 (KLR)

High Court of Kenya
20 June 2019
737 words in judgment
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The bottom line

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The High Court refused to review an earlier judge's order to restart the case, telling the parties their remedy was an appeal, not another application.

What this practically means

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Executive summary

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The defendants/applicants moved the court by notice of motion dated 25th October 2018, brought under Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B, 3A and 80 of the Civil Procedure Act, seeking review of orders and directions issued by Lady Justice Kossy Bor on 26th July 2018, which had directed that the suit proceed to be heard de novo. The application was supported by affidavits of M. N. Ng'ang'a, advocate for the defendants, and of Annuciata Waithira Kibue, Paul Kimari Kibue and Susan Njeri Kibue. It was opposed by the 1st plaintiff, Margaret Nduta Kimathi, in a replying affidavit sworn on 13th November 2018. The court canvassed the matter by written submissions and framed a single issue: whether the application was merited. Justice Komingoi held that the application necessarily fell to be considered under Order 45 rule 1 of the Civil Procedure Rules, and that the grounds advanced did not fall within that rule; the applicants' proper recourse was an appeal against Justice Bor's orders, which they had not preferred. Guided by Stephen Boro Githia vs Family Finance Building Society & 3 Others on the overriding objective, the court found the applicants had not advanced sufficient grounds to warrant review of the directions of 26th July 2018. The application was dismissed with costs abiding the outcome of the suit. Judgment was delivered in Nairobi on 20th June 2019 by L. Komingoi, Judge.

Key legal issues

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Whether the defendants' application satisfies the grounds for review under Order 45 rule 1 of the Civil Procedure Rules

Holding

The application is not merited; the grounds raised do not fall within Order 45 rule 1, and the applicants' remedy lies in an appeal against Justice Bor's orders, which they had not filed

Reasoning

The court considered the grounds in the notice of motion and found they did not fall within Order 45 rule 1, which permits review for discovery of new and important matter, error apparent on the face of the record, or other sufficient reason. Invoking the overriding objective as articulated in Stephen Boro Githia, the court held that sufficient grounds for review of Justice Bor's directions of 26th July 2018 had not been put forth, and that the proper avenue was appeal, not pursued.

p. 2

Legal principles established

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  • An application for review must satisfy the grounds in Order 45 rule 1 of the Civil Procedure Rules; where the grounds do not fall within that rule, the aggrieved party's recourse is an appeal
  • The overriding objective empowers courts to decline unnecessary rehearings and to direct cases to proceed from where they had reached in a just, fair and expeditious manner

Court orders

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  1. 1.The notice of motion dated 25th October 2018 is dismissed
  2. 2.Costs to abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure Rules 2010Order 51 rule 1
  • Civil Procedure Rules 2010Order 45 rule 1

Cases cited (1)

  • Stephen Boro Githia vs Family Finance Building Society & 3 Others
    Nairobi Civil Application No. 263 of 2009
Jurisdiction invoked
Sections 1A, 1B, 3A and 80 of the Civil Procedure Act and Order 45 rule 1 / Order 51 rule 1 of the Civil Procedure Rules 2010

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, "Margaret Nduta Kamithi & another v Annunciata Waithira Kibue & 2 others [2019] KEELC 2681 (KLR)", Case Analysis (2019). (not stated in extract; notice of motion dated 25 October 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2681/eng@2019-06-20

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