[2008] KEHC 3769 (KLR)
The court found that the appeal was unnecessary because the lower court's order simply set aside an ex parte order to allow the application for pauper status to be heard inter partes. The appellant should have prosecuted his application before the lower court rather than appealing. Since the application to proceed...
Source-derived case information.
- Citation
- [2008] KEHC 3769 (KLR)
- Parties
- Appellant: Boniface Mutua Kitungu; Respondent: Peter Mwaura Kamau t/a Mwaura Kamau & Co. Advocate
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 943 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Pauper Status, Extension of Time, and Stay of Execution
- Outcome
- Application refused; appeal struck out.
- Legal Topics
- Pauper Proceedings, Leave to Appeal Out of Time, Stay of Execution, Ex Parte Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Boniface Mutua Kitungu
Appellant
Peter Mwaura Kamau t/a Mwaura Kamau & Co. Advocate
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Pauper Status, Extension of Time, and Stay of Execution
Legal Issues
- 1 Whether the appellant should be allowed to file the application and appeal as a pauper.
- 2 Whether the appeal filed out of time by one day should be admitted.
- 3 Whether there should be a stay of execution of the order appealed against pending disposal of the appeal.
Ratio Decidendi
The court found that the appeal was unnecessary because the lower court's order simply set aside an ex parte order to allow the application for pauper status to be heard inter partes. The appellant should have prosecuted his application before the lower court rather than appealing. Since the application to proceed as a pauper and for extension of time was refused, the appeal, which was filed out of time, was not properly before the court and was struck out. The respondent was awarded costs for the application, but each party was to bear their own costs of the appeal.
Court Disposition
Application refused; appeal struck out.
Orders
- The application to proceed as a pauper is refused with costs to the respondent.
- The appeal, filed one day out of time, is struck out.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 943 of 2007
BONIFACE MUTUA KITUNGU ………………………..APPELLANT
V E R S U S
PETER MWAURA KAMAU
T/a MWAURA KAMAU & CO. ADVOCATE………..RESPONDENT
R U L I N G
The background of this matter is as follows- On 13th February 2007 the lower court granted to the Appellant, ex parte, leave to file suit as a pauper. On 16th October, 2007 the lower court set aside that ex parteorder to enable the application for leave to file suit as a pauper to be canvassed inter partes. On 16th November, 2007 the Appellant, being dissatisfied with that order, appealed against the same herein. At the same time he applied by notice of motion of the same date seeking the following main orders:-
(i) that he be allowed to file the application and the appeal as a pauper;
(ii) that the appeal, which was filed out of time by one day, be admitted out of time, and
(iii) that there be stay of execution of the order appealed against pending disposal of the appeal.
I have considered the submissions of the Appellant, who is in person, and those of the Defendant’s learned counsel. As already observed, the order of the lower court appealed against merely set aside an order that had been granted ex parte (apparently without service upon the opposite party) in order to facilitate the hearing inter partes of the application that had given rise to the order. In these circumstances the appropriate course of action that the Appellant should have taken was to prosecute inter partes his said application before the lower court. Where an applicant is seeking the indulgence of the court, such as the Appellant has done, he must demonstrate that the appeal that he has filed was the most expeditious and appropriate course that he could have taken. In the circumstances of this case, the appeal is totally unnecessary. There is no reason why the Respondent should be put to the expense of defending the appeal, especially where the Appellant is seeking to file the appeal as a pauper.
I will therefore refuse the application with costs to the Respondent. Having done so, the appeal now before the court, which was filed one day out of time, is not properly before the court. It is hereby struck out. Parties will bear their own costs of the appeal. It is so ordered.
DATED AT NAIROBI THIS 22ND DAY OF JANUARY, 2008
H. P. G. WAWERU
J U D G E
DELIVERED THIS 25TH DAY OF JANUARY, 2008