[2023] KEHC 19330 (KLR)

[2023] KEHC 19330 (KLR)

The High Court found that the appellant's challenge was procedurally improper because he appealed against an ex parte judgment and its consequential orders without first applying to set aside the judgment before the trial court. The grounds raised in the appeal and the submissions made were more appropriate for an...

Source-derived case information.

Citation
[2023] KEHC 19330 (KLR)
Parties
Appellant: HM; Respondent: AWM
Court
High Court
Court Station
High Court at Embu
Jurisdiction
Kenya
Judgment Date
27 June 2023
Case Number
Civil Appeal 41 of 2022
Procedural Posture
Civil Appeal / Judgment
Outcome
appeal struck out
Judges
LM Njuguna
Legal Topics
Child Maintenance, Custody of Children, Ex Parte Judgment, Setting Aside Judgment
Source Language
english
Family and Children Civil Procedure Child Maintenance Custody of Children Ex Parte Judgment Setting Aside Judgment

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Summary, issues, holding and outcome

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Parties

HM

Appellant

AWM

Respondent

Procedural Posture

Civil Appeal / Judgment

Legal Issues

  1. 1 Whether the appeal against the ex parte judgment and consequential orders was competent in law.
  2. 2 Whether the appellant was denied a fair hearing regarding the preparation of submissions by a non-advocate.
  3. 3 Whether the trial court erred in ordering salary attachment for child maintenance without proper service or hearing.

Ratio Decidendi

The High Court found that the appellant's challenge was procedurally improper because he appealed against an ex parte judgment and its consequential orders without first applying to set aside the judgment before the trial court. The grounds raised in the appeal and the submissions made were more appropriate for an application to set aside the judgment rather than for an appeal. The court also noted that the appellant was not heard on the issue of whether his submissions were prepared by a qualified advocate, which was irregular and prejudicial, but this did not cure the procedural defect in the appeal. Consequently, the appeal was found to be incompetent and was struck out.

Court Disposition

appeal struck out

Orders

  • The appeal is struck out as incompetent.
  • No orders as to costs.