[2024] KEELC 5420 (KLR)
The court found that the appellant had been duly served and afforded a fair opportunity to be heard, as evidenced by the affidavit of service and the court record. Despite this, the appellant failed to appear or prosecute the appeal. The court emphasized the importance of the right to be heard but held that this...
Source-derived case information.
- Citation
- [2024] KEELC 5420 (KLR)
- Parties
- Appellant: Hillary Gekura Chacha; Respondent: Thomas Maswi Chacha
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E05 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Appeal
- Outcome
- appeal dismissed with costs to the respondent
- Judges
- GMA Ongondo
- Legal Topics
- Right to Be Heard, Appeal Dismissal, Fraud Allegations, Court Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hillary Gekura Chacha
Appellant
Thomas Maswi Chacha
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Appeal
Legal Issues
- 1 Whether the appellant was denied the right to be heard by not being given access to the respondent's submissions before judgment.
- 2 Whether the trial magistrate failed to consider allegations of fraud, contempt, and perjury raised by the appellant.
Ratio Decidendi
The court found that the appellant had been duly served and afforded a fair opportunity to be heard, as evidenced by the affidavit of service and the court record. Despite this, the appellant failed to appear or prosecute the appeal. The court emphasized the importance of the right to be heard but held that this right had not been violated in the circumstances. The court further noted that the appellant's grounds regarding denial of submissions and failure to consider allegations of fraud were not substantiated by any procedural irregularity or miscarriage of justice. Guided by constitutional and statutory principles, the court concluded that there was no merit in the appeal and dismissed...
Court Disposition
appeal dismissed with costs to the respondent
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
Chacha v Chacha (Environment and Land Appeal E05 of 2023) [2024] KEELC 5420 (KLR) (15 July 2024) (Ruling)
Neutral citation: [2024] KEELC 5420 (KLR)
Republic of Kenya
In the Environment and Land Court at Migori
Environment and Land Appeal E05 of 2023
GMA Ongondo, J
July 15, 2024
Between
Hillary Gekura Chacha
Appellant
and
Thomas Maswi Chacha
Respondent
(Being an Appeal arising from the Judgment of Hon. M.N. Obiero, Senior Principal Magistrate dated 30th March 2023 at Kehancha Principal Magistrate Court in ELC NO. 06 OF 2020)
Ruling
1. The appellant in person commenced the instant Appeal by way of a Memorandum of Appeal dated 20th April, 2023 founded on grounds, inter alia;i.That the learned trial Magistrate erred in law and fact by denying the appellants access to the last submissions of the respondent prior to judgment even after several requests and judgment therefore staggered ex-parte.ii.That the learned trial Magistrate erred in law and fact by not giving any slightest attention or consideration to elements of fraud, contempt and/or perjury featuring on the respondent’s affidavits, counterclaim, documents and averments. He gave no orders on the same.
2. The appellant was duly served as discerned in the affidavit of service sworn on 29th March 2024. He is absent without any reason.
3. Mr. B. Singei has implored the court to dismiss this appeal with costs in the interest of Justice.
4. The appellant has been given a fair opportunity to be heard as stated in paragraph 2 hereinabove; see also Ogada v Mollin [2009] KLR 620.
5. This court is guided by Article 159 (2) (b) of the Constitution of Kenya, 2010 and sections 1A,1B,3 & 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and sections 3 of the environment and Land Court Act, 2015 [2011].
6. In the premises, the respondent’s prayer has merit. This Appeal is hereby dismissed with costs to the respondent.Ordered accordingly.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MIGORI THIS 15TH DAY OF JULY, 2024. G.M.A. ONGONDOJUDGEIn presence of: -Mr. B. Singei learned counsel for RespondentCourt Assistant – Tom Maurice