[2018] KEHC 5290 (KLR)
The court found that the appellant was duly served with the application and granted an adjournment to prepare a response but failed to file any opposition within a reasonable period. The magistrate was justified in declining a further adjournment and in adopting the tribunal's order, as the application was...
Source-derived case information.
- Citation
- [2018] KEHC 5290 (KLR)
- Parties
- Appellant: Calvin Ochieng; Respondent: Gilbert Ouyo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- KW Kiarie
- Legal Topics
- Appeal Dismissal, Adoption of Tribunal Orders, Adjournment Requests, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Calvin Ochieng
Appellant
Gilbert Ouyo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in hearing and determining the matter without giving the appellant sufficient time to prepare a defence.
- 2 Whether the trial magistrate erred by adopting an order whose proceedings were not furnished in court.
- 3 Whether the appellant was denied the right to be heard due to alleged lack of service or insufficient time.
Ratio Decidendi
The court found that the appellant was duly served with the application and granted an adjournment to prepare a response but failed to file any opposition within a reasonable period. The magistrate was justified in declining a further adjournment and in adopting the tribunal's order, as the application was unopposed. The appellant's conduct indicated an intention to delay proceedings, and there was no procedural or substantive error by the magistrate. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL APPEAL NO. 6 OF 2017
BETWEEN
CALVIN OCHIENG.............................................................APPELLANT
AND
GILBERT OUYO..............................................................RESPONDENT
(Being an Appeal from the Ruling in Busia Chief Magistrate’s Court Civil Misc. Application No.2 of 2017 by Hon. J. N Maragia- Resident Magistrate).
JUDGMENT
1. CALVIN OCHIENG, the appellant herein, was the respondent in the Busia Chief Magistrate’s Court Miscellaneous Civil Application Number 2 of 2017. The application was seeking to have an order by the Business Premises Rent Tribunal adopted by the court so as to facilitate execution.
2. The application was premised on the following grounds:
a) That the order was issued at Kakamega in Bungoma BPRT case No. 111/2016.
b) The premises is situated at Bar Ober Marachi, Busia County.
c) The respondent has given vacant possession but failed to comply with the rest of the orders.
d) It is imperative to adopt the order to enable execution as the respondent is now no longer a tenant.
e) That it is in the interest of justice for the orders sought to be granted.
The application was allowed. The appellant was dissatisfied and filed this appeal.
3. The grounds of appeal were as follows:
a) That the learned trial magistrate erred in law and fact in hearing and determining the matter without giving the appellant sufficient time to prepare for defence.
b) That the learned trial magistrate erred in law and fact in disregarding the issues raised by the appellant.
c) That the learned trial magistrate erred in law and fact by failing to demand that the proceedings and ruling of Bungoma Tribunal case No. 111 of 2016 be presented to court.
d) That the learned trial magistrate erred in law and fact by adopting an order whose proceedings were not furnished in court.
e) That the learned trial magistrate erred in law and fact in failing to take into account the testimony of the appellant that he was not served with the notice of termination of the tenancy.
4. The appeal was opposed and it was contended that it lacked merits.
5. On 5th February 2018 both parties entered a consent that this appeal be disposed of by way of written submissions. The parties gave themselves timelines up to 1st March 2018 to have filed and served the submissions.
6. The application before the Chief Magistrate’s Court, Busia was filed on 20th January 2017 by way of Notice of motion. The return of service on record indicate that the appellant was served with the said Notice of Motion on 31st January 2017. On 28th February 2017 when the matter came for hearing, the appellant applied for an adjournment on grounds that he had just instructed an advocate. The adjournment was granted. When the matter came for hearing on 21st March 2017, the appellant again sought for an adjournment but the court declined.
7. By 21st March 2017, the appellant had not filed any response to the application. The court was therefore justified in declining to allow an adjournment. The application was unopposed. There was therefore no reason on record for the magistrate to decline to adopt the award of the tribunal.
8. I have noted that the appellant is keen to delay this matter and lay the blame elsewhere. In the magistrate’s court he never filed any grounds to oppose the application. This was a period of one month and three weeks. In this court he filed his submissions on 18th May 2018. This was one month and eighteen days after the parties’ consent deadline of 1st March 2018.
9. The learned magistrate did what was prudent for her to do. The appeal is devoid of merits and I accordingly dismiss it with costs.
DELIVEREDandSIGNEDatBUSIA this 17thdayofJuly, 2018
KIARIE WAWERU KIARIE
JUDGE