John Kimani Wanduma v Mary Wanjiru Wanduma [2019] KEHC 9269 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL APPEAL NO. 42 OF 2016

JOHN KIMANI WANDUMA.........................................APPELLANT

VERSUS

MARY WANJIRU WANDUMA..................................RESPONDENT

RULING NO. 2

1. The appellant prays for review of the order and ruling dated 10th July 2018. He also prays that his earlier notice of motion dated 15th May 2018 be allowed.

2. The two prayers are contained in the notice of motion dated 31st July 2018. The application is predicated on a deposition sworn by the applicant on even date.

3. In a synopsis, the applicant contends that there are two errors on the face of the record: First, that he was not guilty of tardiness as held by the court; and, secondly, that his representative was in court on 22nd May 2017 when the earlier application was taken out of the cause list.

4. The motion for review is contested. The respondent has filed two affidavits sworn on 16th August 2018 and 10th September 2018. In a nutshell, she avers that the applicant has not met the threshold for review;and, that the motion will delay or defeat justice.

5. Under section 80 of the Civil Procedure Act; and, Order 45 of the Civil Procedure Rules, the court has power to review its decision. To do so, the applicant must demonstrate that there is new and important matter or evidence which, after exercise of due diligence, was not within his knowledge or could not be produced at the time; or, on account of some error or mistake apparent on the face of the record; or, for any other sufficient cause.

6. In the earlier motion, the appellant prayed for reinstatement of the interim order granted by the court on 2nd December 2016. On 10th July 2018 I partly found as follows:

“The application was then scheduled for inter-parties hearing on 22nd May 2017. On the latter date neither the applicant nor the respondent appeared in court. The application was taken out of the cause list”

7. I agree with the applicant that his counsel was in court on 22nd May 2017. But the painful truth is that the application was taken out of the cause list because the applicant had not served the respondent.

8. I also found that the interim stay lapsed and that that there was nothing to reinstate. If the court was wrong on that aspect, it is not an error on the face of the record. Rather, it entitles the applicant to an appeal.

9. Lastly, I held that-

“There had been tardiness: the motion was presented on 15th May 2018; well over one year since the lapse of the interim order. The inordinate delay militates against the grant of any discretionary order”

10. Again that finding does not constitute an error on the face of the record but a ground for appeal.

11. For all those reasons the applicant’s notice of motion for review dated 31st July 2018 is devoid of merit. It is hereby dismissed.

12. However, the interests of justice are better served by hearing the main appeal and eschewing numerous interlocutory applications. I am well guided by Stephen Boro Gitiha v Family Finance Bank & 3 others, Nairobi, Court of Appeal, Civ. Appl. 263 of 2009 (UR 183/09) [2009] eKLR.

13. The memorandum of appeal was filed way back on 29th July 2016. The original records of the lower court have been availed. I thus, suo moto, order that the status quo shall be maintained pending the hearing of the appeal.

14. But I will grant directions to ensure the appellant does not fall into slumber: The appellant shall now file and serve the record of appeal within 60 days of today’s date. He shall also move the Deputy Registrar not later than 90 days from today’s date for the file to be placed before the judge for admission or directions.

15. In default, the respondent will at liberty to apply for dismissal of the appeal.

16. Costs shall be in the appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’Athis 12th day of March 2019.

KANYI KIMONDO

JUDGE

Ruling read in open court in the presence of:

Mr. Odinga holding brief for the applicant instructed by Rumba Kinuthia & Company Advocates.

The respondent (in person)

Ms. Dorcas and Ms. Elizabeth, Court Clerks.