[2023] KEHC 23289 (KLR)
The court found that the applicant's right to be heard was a central issue, and that his appeal could not be considered frivolous given the circumstances of the ex parte judgment and the existing orders requiring him to settle the decree. The court held that the application for stay of execution had merit,...
Source-derived case information.
- Citation
- [2023] KEHC 23289 (KLR)
- Parties
- Applicant: George Mugambi Gituma; Respondent: Mutwiri Jacob Lintari; Respondent: Faith Ntarara Muketha
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E099 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay Pending Appeal
- Outcome
- Application for stay of execution allowed.
- Judges
- TW Cherere
- Legal Topics
- Exparte Judgment, Setting Aside Judgment, Stay of Execution, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Mugambi Gituma
Applicant
Mutwiri Jacob Lintari
Respondent
Faith Ntarara Muketha
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay Pending Appeal
Legal Issues
- 1 Whether the applicant should be granted a stay of execution of the ruling and orders in Meru CMCC 60 of 2019 pending appeal.
- 2 Whether the applicant was denied the right to be heard in the lower court proceedings.
- 3 Whether the delay in filing the application to set aside the ex parte judgment was inordinate.
Ratio Decidendi
The court found that the applicant's right to be heard was a central issue, and that his appeal could not be considered frivolous given the circumstances of the ex parte judgment and the existing orders requiring him to settle the decree. The court held that the application for stay of execution had merit, particularly in light of the natural justice principle that no party should be condemned unheard. The court therefore granted a stay of the ruling and orders in Meru CMCC 60 of 2019 pending the hearing and determination of the appeal, subject to the applicant filing and serving the record of appeal within 30 days.
Court Disposition
Application for stay of execution allowed.
Orders
- The ruling dated June 14, 2023 issued in Meru CMCC 60 of 2019 is stayed pending the hearing and determination of this appeal.
- Applicant is directed to file and serve the record of appeal within 30 days from October 5, 2023.
Full Case Text
Judgment text and source record
20 paragraphs
Gituma v Lintari & another (Civil Appeal E099 of 2023) [2023] KEHC 23289 (KLR) (5 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23289 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E099 of 2023
TW Cherere, J
October 5, 2023
Between
George Mugambi Gituma
Applicant
and
Mutwiri Jacob Lintari
1st Respondent
Faith Ntarara Muketha
2nd Respondent
Ruling
Background 1. The parties in this matter concur that applicant did not defend Meru CMCC 60 of 2019 and that the judgment dated February 23, 2022 in favour of respondents was an expartejudgment.
2. By application dated April 6, 2023, applicant sought the setting aside of the expartejudgment and leave to defend the suit on grounds that he had not been served with the court processes.
3. By a ruling datedJune 14, 2023, the said application was dismissed and applicant was ordered to liquate the decretal sum in instalments grounds that:1. Applicant had become aware of the judgment on November 28, 2022 when he was arraigned under a warrant of arrest2. Applicant had on November 28, 2022 filed an application to pay the decretal sum in instalments and did not file application to set aside theexparte judgment3. The application to set aside the exparte judgment was filed with inordinate delay of 13 months4. By notice of motion dated June 22, 2023 filed on June 29, 2023,applicant seeks stay of the ruling dated June 14, 2023 on the grounds that respondents are threatening to execute the exparte judgment and his appeal will be rendered nugatory. Annexed to the application isapplicant’s affidavit sworn onJune 22, 2023 to which is annexed a memorandum of appeal.5. Respondents opposed the application by way of a replying affidavit sworn by the 1st respondent on July 24, 2023 in which he gives a chronology of the proceedings before the trial court. He urges that in the event the application is allowed, the applicant be directed to deposit half of the decretal sum.6. I have considered the application in the light of the affidavits n record and annexures thereto.7. The crux of the matter really is whether applicant ought to have been given an opportunity to defend himself against the respondents’ claim.8. The rules of natural justice “audi alteram partem”, hear the other party, require that no man/woman may be condemned unheard. (See Msagha v Chief Justice & 7 othersNairobi HCMCA No 1062 of 2004 (Lessit, Wendo & Emukule, JJ on 3/11/06) (HCK) [2006] 2 KLR 553).9. Consequently, when applicant herein claims that that right to be heard has been denied, his appeal cannot be said to be frivolous especially in view of the fact that there are in force orders directing him to settle the decree arising out of the exparte judgment.10. From the foregoing, I find that the notice of motion dated June 22, 2023 and filed on June 29, 2023 has merit and it is allowed in the following terms:1. The ruling dated June 14, 2023 issued in Meru CMCC 60 of 2019 is stayed pending the hearing and determination of this appeal2. Applicant is directed to file and serve the record of appeal within 30 days from today’s date3. Mention for directions on November 23, 2023 to confirm compliance with these orders and for further directions4. Costs of this application shall abide the costs of the appeal
DATED AT MERU THIS 05TH DAY OF OCTOBER 2023WAMAE.T. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Appellant/Applicant - Ms. Gumato for Kiogora Mugambi & Co. AdvocatesFor Respondents - Mr. Nyantika for J.Okerosi Ochako & Co Advocates