[2006] KEHC 1557 (KLR)
The court found that it lacked jurisdiction to entertain the Notice of Motion because the issues raised were properly for determination by the Court of Appeal, not the High Court. Entertaining the application would amount to sitting on appeal over its own decision, which is contrary to established legal procedure....
Source-derived case information.
- Citation
- [2006] KEHC 1557 (KLR)
- Parties
- Appellant: Hannah Gathoni Maingi; Respondent: James Mwai P. Nganda
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 86 of 1994
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion
- Outcome
- application dismissed with costs to the respondent
- Judges
- JM Khamoni
- Legal Topics
- Jurisdiction, Abuse of Process, Notice of Motion, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hannah Gathoni Maingi
Appellant
James Mwai P. Nganda
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion
Legal Issues
- 1 Whether the High Court has jurisdiction to entertain an application that effectively seeks to appeal its own decision.
- 2 Whether the Notice of Motion dated 11th August, 2005 constitutes an abuse of the court process.
Ratio Decidendi
The court found that it lacked jurisdiction to entertain the Notice of Motion because the issues raised were properly for determination by the Court of Appeal, not the High Court. Entertaining the application would amount to sitting on appeal over its own decision, which is contrary to established legal procedure. The court further held that the filing of the Notice of Motion was an abuse of the process of the court, as it attempted to circumvent the proper appellate process. Consequently, the application was declared incompetent and dismissed with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The Notice of Motion dated 11th August, 2005 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 86 of 1994
HANNAH GATHONI MAINGI……………....................................…………APPELLANT/APPLICANT
Versus
JAMES MWAI P. NGANDA…………………………..................................………..….RESPONDENT
RULING
Much has been brought to my attention during the hearing of the Appellant/Applicant’s Notice of Motion herein dated 11th August, 2005. But the more I heard and read what was brought to my attention the more I became convinced that I was hearing an appeal disguised as an application under section 3A of the Civil Procedure Act, Order XXI Rule 25 and Order L Rules 1 and 2 of the Civil Procedure Rules and all other enabling provisions of the law.
I have been made to sit on an appeal against my own decision in contravention of the law and correct procedure an d it is highly questionable whether the filing of the said Notice of Motion is not in itself an abuse of the process of the court.
As I had no jurisdiction to hear and determine the issues raised before me during the hearing because they are issues to be determined by the Court of Appeal, I hold the view that this Notice of Motion is incompetent and improperly before me and the same is hereby dismissed with costs to the Respondent.
Dated at Nyeri this 29th day of May, 2006.
J.M. KHAMONI
JUDGE