[1986] KECA 95 (KLR)
The court found that the applicant was not given an opportunity to reply to the respondent's submissions, resulting in an important submission going unanswered. Additionally, the complexity and procedural irregularities in the written submissions made it inappropriate to determine the matter without oral argument....
Source-derived case information.
- Citation
- [1986] KECA 95 (KLR)
- Parties
- Appellant: Bernard Kiarie; Respondent: Benson Kamau Njoroge
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 58 of 1986
- Procedural Posture
- Civil Miscellaneous Application / Ruling on Notice of Motion; Application for Orders Under Order 53
- Outcome
- Application to be heard de novo before the Superior Court.
- Legal Topics
- Title Registration, First Registration Finality, Judicial Review Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bernard Kiarie
Appellant
Benson Kamau Njoroge
Respondent
Procedural Posture
Civil Miscellaneous Application / Ruling on Notice of Motion; Application for Orders Under Order 53
Legal Issues
- 1 Whether the applicant was accorded a fair opportunity to address the court in reply to the respondent's submissions.
- 2 Whether the issuance of a Title Deed under Cap 300 of the Laws of Kenya renders the applicant's challenge moot.
- 3 Whether the application can be determined on written submissions given the procedural irregularities.
Ratio Decidendi
The court found that the applicant was not given an opportunity to reply to the respondent's submissions, resulting in an important submission going unanswered. Additionally, the complexity and procedural irregularities in the written submissions made it inappropriate to determine the matter without oral argument. The court held that the application should be heard de novo to ensure fairness and proper adjudication, particularly given the finality of first registration under Cap 300 and the need to address whether the Title Deed was obtained lawfully.
Court Disposition
Application to be heard de novo before the Superior Court.
Orders
- The application is to be heard de novo.
- File to be placed before Oguk (J) for fixing hearing dates forthwith.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL OF KENYA
AT NAIROBI
civil misc appl 58 of 86[1]
Bernard Kiarie…………………….APPELLANTS
VERSUS
Benson Kamau Njoroge…………….……RESPONDENT
JUDGMENT.
R U L I N G When this Notice of Motion came before me for hearing seeking for Orders in terms of Order 53, both Counsel agreed that they would canvas their application by way of written submissions. Both sides did place their submissions on record. I have carefully considered the written submissions.
Two problems have arisen and which make me believe that may be this application should have been argued before the Court.The 1st problem is the manner in which Counsel for the applicant has decided to make reference to the parties. It takes too much of an effort to ascertain which party he is referring to and in which of the numerous previous proceedings and cSaesceosn.dly, it is clear from the record that the applicant was not accorded an opportunity to address the Court in reply to the respondent's submission. In the result, an important submission was left unanswered to. In that:
"Your Lordship, the 2nd respondent herein has been issued with the Title Deed which actually defeats the applicant's application since the 1st registration is final under Cap 300 of the Laws of Kenya. The Title Deed was issued on 27/1/87 to the 2nd respondent after the Minister's decision which was made on 24/4/1986".
The Learned Counsel proceeded to contend that since the Title was not obtained by fraud, the respondent's rights cannot be challenged. It is for this reason I find that I am not able to rule on this important matter upon the written submission. I am no longer in the Superior Court. I hereby therefore Order that this application be heard de novo. File to be placed before Oguk (J) for fixing hearing dates forthwith. Orders accordingly.
Dated and delivered at Nairobi this ....... day of .......... 1998. OWUOR JUDGE OF APPEAL