Kuwait Court of Cassation principle number 125

Summary: - Orders on petitions. Their nature. They are orders issued by judges of interim matters pursuant to their non-contentious jurisdiction, on the basis of applications submitted by interested parties by petition. A judge may not exercise non-contentious jurisdiction except in cases in which the law permits him to do so. Implication: the legislature restricted the judge’s authority, so that he may not issue an order on a petition outside the cases provided for in the Law of Procedure or any other law. - The challenged judgment’s conclusion setting aside the judgment under appeal and cancelling the order on a petition issued to enhance and strengthen the electric current, because there was no specific provision permitting issuance of the order against which the grievance was brought, and because the general rule is that judicial protection must be sought through the legally prescribed procedure, while recourse to an order on a petition is an exception confined to its scope without expansive interpretation, such that the female appellant had departed from the procedure prescribed by law. This does not vitiate it. Rule: Orders on petitions are orders issued by judges of interim matters pursuant to their non-contentious jurisdiction, on the basis of applications submitted to them by interested parties by petition. The general rule is that a judge does not exercise non-contentious jurisdiction except in cases in which the law permits him to do so. It is apparent from Article 163 of the Law of Procedure that the legislature—in keeping with this general rule, in its concern not to extend this authority beyond its intended purpose, and to avert any dispute arising between those who consider this authority unrestricted and those who consider it restricted—settled this matter by opening that article with the phrase: (In cases in which the law permits obtaining an order on a petition .....). This means that the legislature restricted the judge’s authority in this regard, so that he may not issue an order on a petition outside the cases in which a definitive provision in the Law of Procedure or any other law permits him to issue that order. Since the challenged judgment adhered to this view and concluded by setting aside the judgment under appeal and cancelling the order on a petition issued to enhance and strengthen the electric current in the buildings specified in the documents, deeming it as though it had never existed, on the basis that orders on petitions may be issued only in cases in which a specific provision permits this, and that the provisions of the Civil Code, the Commercial Code and the Law of Procedure contain nothing permitting issuance of the order against which the grievance was brought; and since the general rule in seeking judicial protection or the establishment or protection of rights is that the application must be brought through the procedure prescribed in the Law of Procedure, and recourse to the procedure of an order on a petition is an exception which operates only within its scope, without expansive interpretation; and since the female appellant pursued the procedure of orders on petitions rather than an ordinary action to enhance and strengthen the aforementioned electric current, she departed from the procedure prescribed by law. The judgment therefore correctly applied the law, and the objection to it on this ground is without basis.