[1996] KECA 55 (KLR)
The Court held that since the appellant obtained leave to appeal without serving the application on the respondents, thereby denying them the right to be heard, the order granting leave was irregular. The appellant could not be permitted to benefit from an order so obtained. Consequently, the motion to strike out...
Source-derived case information.
- Citation
- [1996] KECA 55 (KLR)
- Parties
- Appellant: Gabriel Mwaura Ng'ang'a; Respondent: Lawrence Itube Ng'ang'a; Respondent: Patrick Kinuthia Ng'ang'a
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 218 of 1995
- Procedural Posture
- Civil Appeal / Ruling on Motion to Strike Out Appeal
- Outcome
- Appeal and notice of appeal struck out; costs awarded to respondents.
- Judges
- RO Kwach
- Legal Topics
- Leave to Appeal, Service of Process, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Mwaura Ng'ang'a
Appellant
Lawrence Itube Ng'ang'a
Respondent
Patrick Kinuthia Ng'ang'a
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Strike Out Appeal
Legal Issues
- 1 Whether the appellant's failure to serve the application for leave to appeal on the respondents invalidated the leave granted.
- 2 Whether an order obtained without hearing the respondents can be relied upon by the appellant.
Ratio Decidendi
The Court held that since the appellant obtained leave to appeal without serving the application on the respondents, thereby denying them the right to be heard, the order granting leave was irregular. The appellant could not be permitted to benefit from an order so obtained. Consequently, the motion to strike out the notice of appeal and the appeal itself was allowed, and both were struck out with costs to the respondents.
Court Disposition
Appeal and notice of appeal struck out; costs awarded to respondents.
Orders
- The motion is allowed.
- The notice of appeal dated 17th October, 1995 is struck out.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, OMOLO & TUNOI, JJ.A.)
CIVIL APPEAL NO. 218 OF 1995
BETWEEN
GABRIEL MWAURA NG'ANG'A…….....……….........................APPELLANT
AND
LAWRENCE ITUBE NG'ANG'A……….…….................1ST RESPONDENT
PATRICK KINUTHIA NG'ANG'A………….................. 2ND RESPONDENT
(Appeal from the Ruling of the High Court of Kenya at Nairobi (Mr. Justice A.B. Shah) dated 30th June, 1994
IN
H.C.C.SUCC. CAUSE NO. 975 OF 1993)
**********************************
RULING OF THE COURT
Mr. Rumba Kinuthia, for the appellant, concedes that he applied for, and obtained leave to appeal without serving the application on the respondents who were consequently not heard at all. They were entitled to be heard and the appellant cannot be allowed, at any rate in this Court, to take advantage of an order irregularly obtained. That being the case, we allow the motion and strike out the notice of appeal dated 17th October, 1995 and Civil Appeal No. 218 of 1995. The respondents will have costs of both the motion and of the appeal.
Dated and delivered at Nairobi this 25th day of April, 1996.
R.O. KWACH
……………………..
JUDGE OF APPEAL
R.S.C. OMOLO
………………………..
JUDGE OF APPEAL
P.K. TUNOI
……………………
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR