[2019] KEHC 7132 (KLR)
The court determined that it would be improper and contrary to the law for a judge of concurrent jurisdiction to review or set aside the orders of another judge of the same rank. Since the ruling under challenge was delivered by Hon. Bwonwong'a J, the appropriate course is to have the application for review or...
Source-derived case information.
- Citation
- [2019] KEHC 7132 (KLR)
- Parties
- Plaintiff: Eunice Kirunda Kinyua (Suing as the Administratrix of the Estate of Joseph Kinota Kijani); Defendant: Josphat Mwathi Kibiru (as guardian ad litem to D K M)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 376 of 1999
- Procedural Posture
- Civil Case / Direction on Notice of Motion for Review or Setting Aside Ex Parte Ruling
- Outcome
- Application for review or setting aside not determined; file to be placed before original judge for directions.
- Judges
- JK Mulwa
- Legal Topics
- Ex Parte Hearing, Review of Orders, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Eunice Kirunda Kinyua (Suing as the Administratrix of the Estate of Joseph Kinota Kijani)
Plaintiff
Josphat Mwathi Kibiru (as guardian ad litem to D K M)
Defendant
Procedural Posture
Civil Case / Direction on Notice of Motion for Review or Setting Aside Ex Parte Ruling
Legal Issues
- 1 Whether the ex parte ruling delivered by Hon. Bwonwong'a J should be set aside or reviewed due to lack of notice and opportunity to be heard.
- 2 Whether a judge of concurrent jurisdiction can review or set aside the orders of another judge of the same rank.
Ratio Decidendi
The court determined that it would be improper and contrary to the law for a judge of concurrent jurisdiction to review or set aside the orders of another judge of the same rank. Since the ruling under challenge was delivered by Hon. Bwonwong'a J, the appropriate course is to have the application for review or setting aside heard by the same judge. The court therefore directed that the file be placed before Hon. Bwonwong'a J for further orders or directions.
Court Disposition
Application for review or setting aside not determined; file to be placed before original judge for directions.
Orders
- Deputy Registrar to forward the file to the High Court at Narok to be mentioned before Hon. Justice Bwonwong'a J on 29th May 2019 for further orders and/or directions.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAKURU
CIVIL CASE NO. 376 OF 1999
EUNICE KIRUNDA KINYUA (Suing as the Administratrix of the Estate of
(ESTATE OF JOSEPH KINOTA KIJANI)........................................PLAINTIFF
VERSUS
JOSEPHAT MWATHI KIBIRU (as guardian ad litem to D K M...DEFENDANT
DIRECTION ON NOTICE OF MOTION DATED 3RD OCTOBER 2018 BROUGHT BY THE PLAINTIFF
The Notice of Motion dated 3rd October 2018 challenges the Exparte hearing and ruling delivered by the Hon. J.M. Bwonwong’a J sitting at the Narok High Court during the High Court Vacation (August recess).
The hearing was held on the 13th September 2018 and Ruling delivered in the 18th September 2018.
The plaintiffs seek that the ruling be set aside or reviewed on grounds that they were not given an opportunity to be heard on the application, nor notice of the hearing at Narok, in place of Nakuru High Court where the suit is filed.
It is the applicant’s contention that the applicants (respondents herein) mislead the court by non-disclosure of material facts occasioning miscarriage of justice to the applicants/plaintiffs.
Parties have filed submissions on the application. They too did not inform this court of these crucial facts that the exparte hearing and ruling were given by my brother Judge Hon. Bwonwong’a, a fellow judge of concurrent jurisdiction.
In the circumstances, as the said ruling is under attack and an order for review and/or setting aside is called for, it would not be inline with the court’s concurrent jurisdiction of fellow judges to hear and determine the application when the judge who passed the said orders and ruling can easily be available.
In my opinion, to do so would in effect be sitting on appeal against a ruling of a judge of concurrent jurisdiction and against the law.
Advocates for both parties agree that the file be placed before the Hon. Justice Bwonwong’a J to deal with the Notice of Motion aforetasted.
I therefore direct the Deputy Registrar to forward this file to the High Court at Narok, to be mentioned before the Judge, on the 29th May 2019 for further orders and/or directions.
Dated at Nakuru this 17th Day of May 2019.
………………………………………..
J.N. MULWA
JUDGE