[2018] KEHC 6481 (KLR)
The High Court found that the trial magistrate's dismissal of the appellant's application ex-parte, without giving the appellant's advocate an opportunity to be heard, was a wrongful exercise of discretion. The right to be heard is a fundamental principle of natural justice and must be observed in all judicial...
Source-derived case information.
- Citation
- [2018] KEHC 6481 (KLR)
- Parties
- Appellant: Chorui M’Nabea alias Anterena Soroi; Respondent: Joshua Mitheka; Respondent: Martin Mwenda
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 89 of 2017
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Setting Aside Orders, Exercise of Discretion, Ex Parte Dismissal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Chorui M’Nabea alias Anterena Soroi
Appellant
Joshua Mitheka
Respondent
Martin Mwenda
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in dismissing the appellant's application ex-parte without affording the appellant's advocate an opportunity to be heard.
- 2 Whether the dismissal constituted a wrongful exercise of judicial discretion.
Ratio Decidendi
The High Court found that the trial magistrate's dismissal of the appellant's application ex-parte, without giving the appellant's advocate an opportunity to be heard, was a wrongful exercise of discretion. The right to be heard is a fundamental principle of natural justice and must be observed in all judicial proceedings. The appellate court held that the failure to afford the appellant a hearing rendered the dismissal order improper. Consequently, the appeal was allowed, the order of 14th September 2017 was set aside, and the application dated 12th September 2017 was reinstated for hearing before a different magistrate.
Court Disposition
appeal allowed
Orders
- The order of 14th September 2017 is set aside.
- The application dated 12th September 2017 is reinstated for hearing.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURTOF KENYA
AT MERU
CIVIL APPEAL NO. 89 OF 2017
CORAM: D. S. MAJANJA J.
BETWEEN
CHORUI M’NABEA ALIAS ANTERENA SOROI.....APPELLANT
AND
JOSHUA MITHEKA.............................................1ST RESPONDENT
MARTIN MWENDA.............................................2ND RESPONDENT
(Being an appeal from the Ruling and Orderof Hon. L. Ambasi, CM
dated 14th September 2017 at the Chief Magistrates Court
at Meru in Civil Case No. 27 of 2010)
JUDGMENT
This appeal is against an order made by the trial magistrate on 14th September 2017 dismissing the appellant’s application to set aside a dismissal order made on 22nd August 2017. It is apparent from the record that the application was dismissed ex-parte without affording the appellant’s advocate to be heard on the same. This constitutes a wrongful exercise of discretion. Accordingly, this appeal is allowed. The order of 14th September 2017 is set aside and the application dated 12th September 2017 is reinstated for hearing. It shall be heard by any other magistrate other than Hon. L. Ambasi, CM. There shall be no orders as to costs.
DATEDandDELIVEREDatKISUMUthis30th day of May 2018.
D.S. MAJANJA
JUDGE
Mr Ariithi instructed by Kiogora Ariithi and Associates Advocates for the appellant.
Njeru Ithiga & Company Advocates for the respondents.