Henry Wainaina Kihoro & 2 others v John Maina Mburu & another [2019] KEELC 4768 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether delivery of a ruling after purported withdrawal of the suit was an error on the face of the record
No - the purported withdrawal without leave and while the file was with the judge awaiting ruling produced no order of withdrawal, so no error arose.
Order 45 rule 1 permits review only for new and important matter, mistake or error apparent on the face of the record or other sufficient reason. The notices of withdrawal were filed without leave of the court while the file was with the judge awaiting ruling, and were never endorsed by the Deputy Registrar as an order of the court. Consequently there was no withdrawn suit at the time of the ruling and Mutungi J. committed no error. Moreover, the contempt application was a distinct matter and contempt had been committed before the withdrawal.
Whether the correctness of the contempt finding itself (no order barring a parallel office; no penal notice) is reviewable
No - these go to the merits or should have been raised before Mutungi J.; they are matters for appeal, not review.
The court has no appellate jurisdiction over a decision of a judge of concurrent jurisdiction. A challenge to the substance of the contempt finding goes to the merits and lies on appeal. The absence of a penal notice was an issue that should have been raised when the contempt application was argued before Mutungi J.; having not been raised or having been overruled, it cannot found a review of his orders.
Legal principles established
#- A suit pending hearing or ruling before a court can only be withdrawn with leave of the court; withdrawal effected without leave does not stop the court from delivering a pending ruling.
- Withdrawal of a suit cannot defeat a pending contempt application, since contempt proceedings survive withdrawal and contempt committed before withdrawal remains punishable.
- Disagreement with the merits of a decision of a judge of concurrent jurisdiction is a matter for appeal, not a ground for review.
- The burden lies on the applicant for review to demonstrate an error apparent on the face of the record.
Court orders
#- 1.The plaintiffs' Notice of Motion application dated 14th December, 2015 seeking review and setting aside of the ruling of Mutungi J. of 11th December, 2015 is dismissed
- 2.Costs of the application awarded to the defendants
- 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 Wainaina Kihoro & 2 others v John Maina Mburu & another [2019] KEELC 4768 (KLR)", Case Analysis (2019). Not stated in the extract. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4768/eng@2019-02-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.