Please Wait. Searching ...
|Case Number:||Civil Suit 115 of 1999|
|Parties:||THOMAS OWEN ONDIEKI v NATIONAL BANK OF KENYA LTD|
|Date Delivered:||13 Apr 2011|
|Court:||High Court at Eldoret|
|Citation:||THOMAS OWEN ONDIEKI v NATIONAL BANK OF KENYA LTD  eKLR|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
IN THE HIGH COURT OF KENYA
CIVIL SUIT NO. 115 OF 1999
THOMAS OWEN ONDIEKI ..................................................................................................PLAINTIFF
NATIONAL BANK OF KENYA LTD.................................................................................. DEFENDANT
The grounds of the application, as stated in the body of the application, are that the said judgment did not include interest; that the respondent has unilaterally frozen or blocked the applicant’s account without an order of the court; that the respondent deposited Kshs 523,605.50 in the applicant’s account with the intention of the same being accessed by the applicant but the respondent thereafter blocked the same; that the said sum should attract compound interest and be accessed by the applicant and that the sum of Kshs 119,120/= was deposited in the joint account because there was an alleged appeal which appeal has never been filed.
When the application came up for hearing before me on 26th January, 2011, counsel agreed to file written submissions which were in place by 16th March, 2011. The submissions reiterated the stand-points taken by the parties in their respective affidavits/Grounds of Opposition.
The applicant must be a person aggrieved by:
(a) a decree or order from which an appeal is allowed but from which no appeal has been preferred; or
(b) a decree or order from which no appeal is allowed; and
Who from the discovery of new and important matter or evidence which after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made or on account of some mistake or error apparent on the face of the record or for any other sufficient reason.
The application also suffers from a fatal omission. Annexed to the affidavit in support, is a copy of a ruling of Gacheche J, on the respondent’s application for stay of execution, a copy of a cheque for Kshs 119,120/= in the name of the parties’ advocates and a copy of a Notice of Appeal lodged by M/s Mainye & Company Advocates. However, the applicant seeks a review of the judgment delivered on 25th May 2004. That judgment is not annexed nor is an extracted decree exhibited. The omission to exhibit the extracted order clearly offends the provisions of Section 80 of the Civil Procedure Act. In the case of G.M. Jivanji & J.M. Jivanji –vs- E.M. Jivanji and another, Pickering, C.J. delivered himself as follows:-
The views of Pickering CJ. have been followed in subsequent decisions of both the High Court and the Court of Appeal. Nyarangi J., as he then was, stated as follows in the case of Bernard Githinji –vs- Kirate Farmers Co-opeative Ltd [HCCC No. 32 of 1974] (UR):
So, in view of what is stated above, the failure by the applicant to extract a formal decree was fatal to the application and it should on that basis fail.
The primary basis for the application is the alleged failure to capture the element of interest in the judgment. Under section 26 of the Civil Procedure Act, interest is at the discretion of the Court. The section reads in part as follows:
It was therefore within the learned Judge’s discretion to award or not to award interest. If she did not, that parse cannot constitute an error on the face of the record. In any event, annexture “Tool” i.e the ruling of Gacheche J., on the respondent’s application for stay of execution, was made after hearing both counsel. The applicant must have, by then, known that interest had not been captured in the judgment. Judge Gacheche’s ruling was delivered on 23rd March, 2006. It has taken the applicant five (5) years to realize the apparent error on the face of the record. In the premises, I agree with the respondent that this application is an afterthought.
The applicant has rather in an unorthodox manner sought an order of the court to access Kshs 523,605.05 deposited on his account by the respondent. I say unorthodox because the application for review contains no such prayer and it is settled that parties are bound by their pleadings. In any event, such an order would probably be in execution of the judgment which was stayed by Gacheche J. If the deposit is not related to the judgment sought to be reviewed, then the applicant is setting up another cause of action in the grounds of the review application. That with respect is mischievous.
It is so ordered.
DATED AND DELIVERED AT ELDORET LTHIS 13TH DAY OF APRIL, 2011.