REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI COMMERCIAL COURTS
CIVIL CASE NO.1027 OF 2000
NATIONAL INDUSTRIAL CREDIT BANK LIMITED..................................................................PLAINTIFF
VERSUS
GEORGE WAKARO KUHORA.......................................DEFENDANT
R U L I N G
This application has been brought under Section 3A of the Civil Procedure Act, Order IXB Rules 1, 3 and 8; Order XLIV Rule 1(1) (a) and Order XXI Rule 22(1) of the Civil Procedure Rules for the following orders:-
“1. THAT the decision and orders made in this matter on the 30th May, 2001, in respect to the suit herein be varied, reviewed and/or set aside.
2. THAT the plaintiff’s application dated 17th April, 2001, be fixed for hearing de novo on merit.
3. THAT there be a stay of any proceedings for taxation of the plaintiff’s bill of costs herein and/or there be stay of execution in this suit until hearing and determination of this application.”
In seeking the orders for review referred to above, the applicant did not extract a copy of the “decision” or “order” made by the court. It is now accepted to be the law that a party who wishes to appeal against or apply for a review of a decree has to move the court to draw up and issue the formal decree or order of the court before the court can consider the matter (see Galamhussein Mulla Jivanji and Another v Ebrahim Mulla Jivanji & Another (1929 - 30) 12 KLR 44 and Uhuru Highway Development Limited v Central Bank of Kenya and 2 others Milimani (HCCC No.29 of 1995). The reason for this is explained in the Jivanji case as follows:-
“Apart from any consideration whether the course adapted by the learned judge in relation to the exparte order of the 8th July, 193 0, was or was not well founded, the question emerges as to the precise character of the grievances which must be experienced by a person applying for a review under Order XLII. A person applying for a review under that Order must be “aggrieved by a decree or order”, the words “decree” and “order” are here used in the sense set out in the definitions in section 2 of the Civil Procedure Ordinance. Each decree necessarily follows the judgment upon which it is grounded and if a person is aggrieved at the dec ree his application should be for a review of the judgment upon which it is based. But, in my opinion, however aggrieved a person may be at the various expressions contained in a judgment or even at various rulings embodied therein, unless that person is aggrieved at the formal decree or the formal order based upon the judgment as a whole, that person cannot under Order XLII appear before the judge who passed the judgment and argue whether this or that passage in the judgment is tenable or untenable.
The r atio decidendi expressed in a judgment cannot be called in question in review unless the resultant decree is a source of legitimate grievance to party to a suit. In these proceedings no resultant decree on the 29th August, 1930, had yet come into existence. It is the duty of a party who wishes to appeal against, or apply for a review of, a decree or order to move the court to draw up and issue the formal decree or order.”
Accordingly in as much as the applicant has failed to extract the order sought to be reviewed and to annex it to the application, the application fails and is ineffective. I would therefore direct that the appeal stands dismissed with costs.
Dated at Nairobi this 20th day of November, 2001.
T. MBALUTO
JUDGE