Q8-Civil Lit-2015

The High Court of Kenya sitting at Eldoret has passed a judgment against Kaloki Karokora Mayanja to pay Olia Biabene a sum of Kshs.150 million. Kaloki seeks your advice on the civil procedure law and practice on what is, or may be, open to him and how to go about it to:

(a)Overturn or alter that decision.

(b)Suspend the enforcement of that decision (here set out the applicable principles guiding the forum where he makes his effort).

Provide him with the requisite legal advice

Overturn or alter the decision.

Review

This is covered under Order 45 of the Civil Procedure Rules. When a person is aggrieved by a decision they may apply for review of the decision. They may apply for review to the same court that passed the judgment. Review may be made on the basis of new discovery of evidence and facts that upon exercise of due diligence was not before the court at the time of judgment or if there is an apparent error or omission on the record of the court or for any other sufficient reason. A review is available where an appeal has not been preferred. With regard to the facts; if Kaloki can find new evidence or discover new facts that are material to the case that were not within the province of the court at the time of judgement or if there is an apparent error on the record of the court as regards the judgement then the decision may be amenable to review.

Appeal

An appeal is a mechanism where one requests a higher/superior court to reverse the decision of a trial court after final judgment or other legal rulings. An appeal is only available to parties t the suit. This is a distinction from review where anyone prejudicially aggrieved by the decision of a court may apply for review. An appeal may not lie from a judgment that was delivered with consent of the parties.

An appeal from the High court lies with the court of Appeal. This is covered under the Appellate Jurisdiction Act. The appeal to the C.A must be made on a point of law and not fact. An appeal may be preferred upon the following grounds;

1.      The decision being contrary to law or to some usage having the force of law

2.      The decision having failed to determine some material issue of law or usage

3.      Having the force of law; a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits

(b)Suspend the enforcement of that decision (here set out the applicable principles guiding the forum where he makes his effort)

Setting aside judgement

Setting aside judgment- under Order 10 of the civil procedure rules where judgement has been entered in default of defense or appearance. The party losing may with a reason apply to the same court to set aside or vary such judgment.

Stay of execution

According to Order 22 of the Civil procedure rules states that when a decree holder is in the process of execution. The judgement debtor may apply to the court that is executing the decree for a stay of execution for a reasonable time as the judgement debtor may require for purposes of lodging an appeal.

If an appeal has been lodged the application for stay may be made to the appellate court. if an appeal has not been lodged but is intended the application is made to the court that passed the decree.