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ELCDismissedNot stated in the excerpt (suit of 2018, Thika)· [2021] KEELC 3043 (KLR)

Solomon Wanyoike Wainaina v Sunrise Synthetics Limited [2021] KEELC 3043 (KLR)

High Court of Kenya
3 June 2021
2,103 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court dismissed a request to review a 2018 ruling, confirming that dissatisfaction with a decision means you appeal it, not seek review, and without delay.

What this practically means

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Executive summary

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The Defendant/Applicant, Jayantilal K. Shah, brought a Notice of Motion dated 25th June 2020 under Sections 80, 63, 1, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules seeking review of the Ruling delivered on 19th December 2018, which had placed the Defendant's preliminary objection in abeyance, incorporated it into the main suit, maintained status quo, and granted the Plaintiff's injunction and deposit-related prayers without an inter partes hearing. The Defendant alleged errors on the face of the record, condemnation unheard, and explained that it only learnt of the ruling's contents on 2nd June 2020 when perusing the court file. The Plaintiff/Respondent opposed, contending no grounds for review existed and that the remedy was appeal, which was not pursued. Justice L. Gacheru framed a single issue: whether the Applicant met the Order 45 threshold. The court found no error apparent on the face of the record had been pinpointed, applying Nyamogo & Nyamogo v Kogo; that the complaint about non-determination of the preliminary objection and ex parte orders were grounds for appeal, not review; and that the delay of more than one year was unexplained and unreasonable, citing Abdulrahman Hassan v National Bank of Kenya. The application was dismissed entirely with costs to the Plaintiff/Respondent, and the parties were directed to set the suit down for expedited hearing, with the preliminary objection to be determined at that stage.

Key legal issues

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01

Whether an error apparent on the face of the record existed in the Ruling of 19th December 2018

Holding

No error was pinpointed; the alleged grievances are grounds for appeal, not review

Reasoning

The Applicant alleged mistakes and errors on the face of the record but failed to identify them. Relying on Nyamogo & Nyamogo v Kogo, a mere erroneous decision or a possible other view is not an error apparent on the face of the record. Complaints about the court declining to determine the preliminary objection, issuing status quo orders and granting an injunction ex parte are matters for appeal.

p. 2
02

Whether there was sufficient reason to warrant review

Holding

No sufficient reason was elaborated; the Applicant was aggrieved and should have appealed

Reasoning

The Applicant's true grievance was dissatisfaction with the Ruling of 19th December 2018. The proper remedy was an appeal to the Court of Appeal within 14 days, which was not pursued; instead the Defendant sought the judge's recusal. Prejudice and irreparable injury arising from the ruling are matters for the Court of Appeal.

p. 3
03

Whether the application was made without undue delay

Holding

The delay of more than one year (19th December 2018 to 25th June 2020) was unexplained and unreasonable

Reasoning

Order 45 requires an application for review to be made without undue delay. The ruling sought to be reviewed was delivered on 19th December 2018 and the application filed on 25th June 2020. The Applicant's explanation - that it only perused the file and obtained the ruling on 2nd June 2020 - was not accepted as a satisfactory explanation.

p. 3

Legal principles established

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  • Review lies only where there is discovery of new and important matter or evidence, an error apparent on the face of the record, or sufficient reason, and the application must be made without undue delay
  • A grievance that the trial judge failed to consider evidence or declined to determine a preliminary objection is a ground of appeal, not a ground for review
  • Unexplained and unreasonable delay defeats an application for review

Court orders

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  1. 1.The Notice of Motion dated 25th June 2020 seeking review of the Ruling delivered on 19th December 2018 is dismissed entirely
  2. 2.Costs of the application awarded to the Plaintiff/Respondent
  3. 3.Parties directed to set the suit for hearing expeditiously and avoid delaying it with interlocutory applications; the Defendant's preliminary objection to be determined at the hearing
Jurisdiction invoked
Sections 80, 63, 1, 1B and 3A of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules

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, "Solomon Wanyoike Wainaina v Sunrise Synthetics Limited [2021] KEELC 3043 (KLR)", Case Analysis (2021). Not stated in the excerpt (suit of 2018, Thika). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3043/eng@2021-06-03

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