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Write a motion to reopen for a client with a removal order
Motion to Reopen for a Client with a Removal Order
Table of Contents
Introduction
Legal Basis for Motion to Reopen
Grounds for Reopening
Supporting Evidence
Legal Precedents
Conclusion
Sample Motion to Reopen
1. Introduction
In the context of Kenyan law, a motion to reopen a case is a legal request to a court to reconsider a decision it has already made. This is particularly relevant in cases where new evidence or changes in circumstances have emerged that could significantly impact the outcome of the case. This document will outline the legal basis, grounds, and supporting evidence required for filing a motion to reopen a removal order in Kenya. Additionally, a sample motion to reopen will be provided for practical guidance.
2. Legal Basis for Motion to Reopen
The legal framework for filing a motion to reopen in Kenya is primarily governed by the Civil Procedure Act (Cap 21) and the Civil Procedure Rules. Specifically, Order 45 of the Civil Procedure Rules provides the basis for seeking a review of a court's decision. According to Order 45 Rule 1:
Any person considering themselves aggrieved by a decree or order from which an appeal is allowed but from which no appeal has been preferred, or by a decree or order from which no appeal is allowed, may apply for a review of judgment to the court which passed the decree or made the order.
The grounds for review include:
Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within the applicant's knowledge or could not be produced by them at the time when the decree was passed or order made.
Some mistake or error apparent on the face of the record.
Any other sufficient reason.
3. Grounds for Reopening
To successfully file a motion to reopen a removal order, the following grounds must be established:
New Evidence: The discovery of new and important evidence that was not available at the time of the original decision.
Change in Circumstances: Significant changes in the circumstances of the case that could alter the outcome.
Legal Errors: Identification of legal errors in the original decision that warrant reconsideration.
Procedural Irregularities: Any procedural irregularities that may have affected the fairness of the original proceedings.
4. Supporting Evidence
Supporting evidence is crucial for the success of a motion to reopen. This may include:
Affidavits: Sworn statements from witnesses or experts that provide new information or clarify existing evidence.
Documents: New documents that were not available during the original proceedings, such as medical reports, financial records, or official correspondence.
Expert Testimony: Testimony from experts that can provide new insights or interpretations of the evidence.
5. Legal Precedents
Several case laws in Kenya provide guidance on the principles and application of motions to reopen or review court decisions. Some relevant cases include:
Nyamogo & Nyamogo Advocates v. Kogo [2001] eKLR: This case established that for a review to be granted, the applicant must demonstrate the discovery of new and important evidence or an error apparent on the face of the record.
National Bank of Kenya Ltd v. Ndungu Njau [1997] eKLR: The court held that a review can be granted for any other sufficient reason, which must be analogous to the other grounds specified in Order 45 Rule 1.
Francis Origo & Another v. Jacob Kumali Mungala [2005] eKLR: This case emphasized that the new evidence must be of such a nature that it could not have been obtained with reasonable diligence for use at the trial.
6. Conclusion
Filing a motion to reopen a removal order in Kenya requires a thorough understanding of the legal framework, grounds for reopening, and the necessary supporting evidence. By adhering to the principles outlined in the Civil Procedure Act and relevant case laws, one can effectively present a compelling case for reconsideration.
TLDR
To file a motion to reopen a removal order in Kenya, you must establish grounds such as new evidence, changes in circumstances, legal errors, or procedural irregularities. Supporting evidence and adherence to legal precedents are crucial for success.
7. Sample Motion to Reopen
IN THE HIGH COURT OF KENYA AT [LOCATION]
CIVIL CASE NO. [CASE NUMBER]
BETWEEN
[YOUR FULL NAME]....................................................APPLICANT
AND
[RESPONDENT'S FULL NAME]........................................RESPONDENT
NOTICE OF MOTION
(Under Order 45 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and all other enabling provisions of the law)
TAKE NOTICE that this Honourable Court will be moved on the [Date] day of [Month], [Year] at [Time] or soon thereafter as counsel for the Applicant may be heard on behalf of the Applicant for ORDERS:
THAT this Honourable Court be pleased to reopen and review its order dated [Date of Original Order].
THAT the costs of this application be provided for.
WHICH APPLICATION is based on the following grounds:
Discovery of New Evidence: The Applicant has discovered new and important evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced at the time when the decree was passed or order made.
Change in Circumstances: There have been significant changes in the circumstances of the case that could alter the outcome.
Legal Errors: There were legal errors in the original decision that warrant reconsideration.
Procedural Irregularities: There were procedural irregularities that may have affected the fairness of the original proceedings.
AND WHICH APPLICATION is supported by the annexed affidavit of [Your Full Name] and on the following further grounds and reasons to be adduced at the hearing hereof.
DATED at [Location] this [Date] day of [Month], [Year].
_________________________
[Your Full Name]
Applicant
DRAWN AND FILED BY:
[Your Advocate's Name]
[Law Firm's Name]
[Address]
[City, Postal Code]
[Email Address]
[Phone Number]
TO BE SERVED UPON:
[Respondent's Full Name]
[Address]
[City, Postal Code]
SUPPORTING AFFIDAVIT
I, [Your Full Name], of Post Office Box Number [Your P.O. Box], [City], in the Republic of Kenya, do hereby make oath and state as follows:
THAT I am the Applicant herein and therefore competent to swear this affidavit.
THAT on [Date of Original Order], this Honourable Court issued an order for my removal.
THAT I have since discovered new and important evidence which was not within my knowledge and could not be produced at the time when the decree was passed or order made. (Attach the new evidence as annexures)
THAT there have been significant changes in the circumstances of the case that could alter the outcome. (Detail the changes in circumstances)
THAT there were legal errors in the original decision that warrant reconsideration. (Specify the legal errors)
THAT there were procedural irregularities that may have affected the fairness of the original proceedings. (Detail the procedural irregularities)
THAT I am advised by my advocate on record, which advice I verily believe to be true, that this is a proper case for this Honourable Court to exercise its discretion in my favour.
THAT what is deponed to herein is true to the best of my knowledge, information, and belief.
SWORN at [City] by the said
[Your Full Name]
this [Date] day of [Month], [Year].
_________________________
DEPONENT
BEFORE ME
_________________________
COMMISSIONER FOR OATHS
DRAWN AND FILED BY:
[Your Advocate's Name]
[Law Firm's Name]
[Address]
[City, Postal Code]
[Email Address]
[Phone Number]
TO BE SERVED UPON:
[Respondent's Full Name]
[Address]
[City, Postal Code]
CERTIFICATE OF URGENCY
I, [Your Advocate's Name], an advocate of the High Court of Kenya, do hereby certify that this application is urgent and ought to be heard on a priority basis due to the following reasons:
THAT the Applicant is facing imminent removal from the jurisdiction, which would render the outcome of this application nugatory.
THAT the new evidence and changes in circumstances necessitate immediate reconsideration to prevent a miscarriage of justice.
DATED at [Location] this [Date] day of [Month], [Year].
_________________________
[Your Advocate's Name]
Advocate for the Applicant
ORDER
UPON READING the Notice of Motion dated [Date] and the Supporting Affidavit of [Your Full Name] sworn on [Date], AND UPON HEARING counsel for the Applicant, IT IS HEREBY ORDERED:
THAT the order dated [Date of Original Order] be and is hereby reopened and reviewed.
THAT the costs of this application be in the cause.
GIVEN under my hand and seal of this Honourable Court at [Location] this [Date] day of [Month], [Year].
_________________________
JUDGE
ISSUED at [Location] this [Date] day of [Month], [Year].
DEPUTY REGISTRAR
HIGH COURT OF KENYA AT [LOCATION]
CIVIL CASE NO. [CASE NUMBER]
BETWEEN
[YOUR FULL NAME]....................................................APPLICANT
AND
[RESPONDENT'S FULL NAME]........................................RESPONDENT
NOTICE OF MOTION
(Under Order 45 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and all other enabling provisions of the law)
TAKE NOTICE that this Honourable Court will be moved on the [Date] day of [Month], [Year] at [Time] or soon thereafter as counsel for the Applicant may be heard on behalf of the Applicant for ORDERS:
THAT this Honourable Court be pleased to reopen and review its order dated [Date of Original Order].
THAT the costs of this application be provided for.
WHICH APPLICATION is based on the following grounds:
Discovery of New Evidence: The Applicant has discovered new and important evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced at the time when the decree was passed or order made.
Change in Circumstances: There have been significant changes in the circumstances of the case that could alter the outcome.
Legal Errors: There were legal errors in the original decision that warrant reconsideration.
Procedural Irregularities: There were procedural irregularities that may have affected the fairness of the original proceedings.
AND WHICH APPLICATION is supported by the annexed affidavit of [Your Full Name] and on the following further grounds and reasons to be adduced at the hearing hereof.
DATED at [Location] this [Date] day of [Month], [Year].
_________________________
[Your Full Name]
Applicant
DRAWN AND FILED BY:
[Your Advocate's Name]
[Law Firm's Name]
[Address]
[City, Postal Code]
[Email Address]
[Phone Number]
TO BE SERVED UPON:
[Respondent's Full Name]
[Address]
[City, Postal Code]
SUPPORTING AFFIDAVIT
I, [Your Full Name], of Post Office Box Number [Your P.O. Box], [City], in the Republic of Kenya, do hereby make oath and state as follows:
THAT I am the Applicant herein and therefore competent to swear this affidavit.
THAT on [Date of Original Order], this Honourable Court issued an order for my removal.
THAT I have since discovered new and important evidence which was not within my knowledge and could not be produced at the time when the decree was passed or order made. (Attach the new evidence as annexures)
THAT there have been significant changes in the circumstances of the case that could alter the outcome. (Detail the changes in circumstances)
THAT there were legal errors in the original decision that warrant reconsideration. (Specify the legal errors)
THAT there were procedural irregularities that may have affected the fairness of the original proceedings. (Detail the procedural irregularities)
THAT I am advised by my advocate on record, which advice I verily believe to be true, that this is a proper case for this Honourable Court to exercise its discretion in my favour.
THAT what is deponed to herein is true to the best of my knowledge, information, and belief.
SWORN at [City] by the said
[Your Full Name]
this [Date] day of [Month], [Year].
_________________________
DEPONENT
BEFORE ME
_________________________
COMMISSIONER FOR OATHS
DRAWN AND FILED BY:
[Your Advocate's Name]
[Law Firm's Name]
[Address]
[City, Postal Code]
[Email Address]
[Phone Number]
TO BE SERVED UPON:
[Respondent's Full Name]
[Address]
[City, Postal Code]
CERTIFICATE OF URGENCY
I, [Your Advocate's Name], an advocate of the High Court of Kenya, do hereby certify that this application is urgent and ought to be heard on a priority basis due to the following reasons:
THAT the Applicant is facing imminent removal from the jurisdiction, which would render the outcome of this application nugatory.
THAT the new evidence and changes in circumstances necessitate immediate reconsideration to prevent a miscarriage of justice.
DATED at [Location] this [Date] day of [Month], [Year].
_________________________
[Your Advocate's Name]
Advocate for the Applicant
ORDER
UPON READING the Notice of Motion dated [Date] and the Supporting Affidavit of [Your Full Name] sworn on [Date], AND UPON HEARING counsel for the Applicant, IT IS HEREBY ORDERED:
THAT the order dated [Date of Original Order] be and is hereby reopened and reviewed.
THAT the costs of this application be in the cause.
GIVEN under my hand and seal of this Honourable Court at [Location] this [Date] day of [Month], [Year].
_________________________
JUDGE
ISSUED at [Location] this [Date] day of [Month], [Year].
DEPUTY REGISTRAR
HIGH COURT OF KENYA AT [LOCATION]
CIVIL CASE NO. [CASE NUMBER]
BETWEEN
[YOUR FULL NAME]....................................................APPLICANT
AND
[RESPONDENT'S FULL NAME]........................................RESPONDENT
NOTICE OF MOTION
(Under Order 45 Rule 1 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and all other enabling provisions of the law)
TAKE NOTICE that this Honourable Court will be moved on the [Date] day of [Month], [Year] at [Time] or soon thereafter as counsel for the Applicant may be heard on behalf of the Applicant for ORDERS:
THAT this Honourable Court be pleased to reopen and review its order dated [Date of Original Order].
THAT the costs of this application be provided for.
WHICH APPLICATION is based on the following grounds:
Discovery of New Evidence: The Applicant has discovered new and important evidence which, after the exercise of due diligence, was not within their knowledge or could not be produced at the time when the decree was passed or order made.
Change in Circumstances: There have been significant changes in the circumstances of the case that could alter the outcome.
Legal Errors: There were legal errors in the original decision that warrant reconsideration.
Procedural Irregularities: There were procedural irregularities that may have affected the fairness of the original proceedings.
AND WHICH APPLICATION is supported by the annexed affidavit of [Your Full Name] and on the following further grounds and reasons to be adduced at the hearing hereof.
DATED at [Location] this [Date] day of [Month], [Year].
_________________________
[Your Full Name]
Applicant
DRAWN AND FILED BY:
[Your Advocate's Name]
[Law Firm's Name]
[Address]
[City, Postal Code]
[Email Address]
[Phone Number]
TO BE SERVED UPON:
**[Respond
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