Justine Magare Bosire v Isaac Omboga [2022] KEELC 1526 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for review under Order 45 Rule 1 was met
Yes - the mix-up in granting prayer 2 instead of prayer 1 of the application dated 29th July, 2019 constituted an error apparent on the face of the record; the pendency of the Respondent's appeal did not bar review, and no irreparable loss was demonstrated
Section 80 of the Civil Procedure Act confers power to review while Order 45 Rule 1 defines the grounds, including error apparent on the face of the record. The court found the granting of the wrong prayer was such an error. Order 45 rule 1(2) permits a non-appealing party to seek review notwithstanding a pending appeal by the other party, and the Respondent failed to demonstrate loss not remediable by costs, since no stay of execution was in place.
Whether failure to attach the order sought to be reviewed is fatal
No - Order 45 does not expressly require annexure of the order; the application is not fatally defective where the court can identify the decision complained of
The court held Order 45 contains no express requirement that the order or decree be annexed. Relying on Sheikh Ali Taib v George Ellam Wekesa, the Court of Appeal's position that a review application is not fatally defective where the party can direct the court's attention to the part of the ruling complained of was adopted, consistent with Article 159's command against undue regard to technicalities.
Legal principles established
#- A party who is not appealing may apply for review notwithstanding the pendency of an appeal by another party
- Failure to attach the order or decree sought to be reviewed does not render an application for review fatally defective
Court orders
#- 1.That the Respondent be evicted from the Applicant's land parcel LR. No. KISII WANJARE/BOKEIRE/4414 with immediate effect
- 2.The OCS Gesonso Police Station is hereby directed to provide security during the eviction and demolition of illegal structures on the Applicant's land parcel LR No. KISII WANJARE/BOKEIRE/4414
- 3.That costs of this application to be borne by the Respondent
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and 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, "Justine Magare Bosire v Isaac Omboga [2022] KEELC 1526 (KLR)", Case Analysis (2022). Not stated in the extract (Notice of Motion dated 25th September, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1526/eng@2022-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.