[2015] KEHC 1242 (KLR)
The court found that, by consent of the parties, the appeal should be admitted for hearing subject to the lower court's file being availed before the hearing. The court further directed that the appeal will be heard after service on the respondents, and the Deputy Registrar is to ensure the lower court's file is...
Source-derived case information.
- Citation
- [2015] KEHC 1242 (KLR)
- Parties
- Appellant: Kenneth Mwenda; Respondent: Julius Rimberia; Respondent: Douglas Mugambi Nkanata
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Case 24 of 2015
- Procedural Posture
- Civil Appeal / Interlocutory Application Ruling
- Outcome
- Application allowed in part by consent; appeal admitted for hearing subject to conditions.
- Judges
- FM Njoroge
- Legal Topics
- Admission of Appeal, Ex Parte Hearing, Directions on Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Mwenda
Appellant
Julius Rimberia
Respondent
Douglas Mugambi Nkanata
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application Ruling
Legal Issues
- 1 Whether the appeal should be admitted to hearing under Section 79B of the Civil Procedure Act.
- 2 Whether the appeal should proceed ex-parte or the respondents should be served.
- 3 Whether directions are necessary regarding the hearing of the appeal.
Ratio Decidendi
The court found that, by consent of the parties, the appeal should be admitted for hearing subject to the lower court's file being availed before the hearing. The court further directed that the appeal will be heard after service on the respondents, and the Deputy Registrar is to ensure the lower court's file is attached to the appeal file before the hearing commences. The court exercised its discretion to give directions necessary for the just and expeditious determination of the appeal, in line with the Civil Procedure Act and Rules.
Court Disposition
Application allowed in part by consent; appeal admitted for hearing subject to conditions.
Orders
- The appeal is admitted for hearing subject to the lower court's file being availed before the hearing.
- The appeal will be heard after service on the respondents.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
HCCA 24 OF 2015
KENNETH MWENDA.........................................................................APPELLANT
VERSUS
JULIUS RIMBERIA...................................................................1ST RESPONDENT
DOUGLAS MUGAMBI NKANATA...........................................2ND RESPONDENT
R U L I N G
This application by way of Notice of Motion is dated 10. 6.2015 and seeks orders:
THAT this application be certified as urgent.
THAT this Honourable Court be pleased to admit the appeal to hearing in terms of Section 79 B of Civil Procedure Act.
THAT the matter having been decided ex-parte after Respondents failed to appeal or file defence, this Honourable Court do give directions as to whether the Appeal should be heard ex- parte or whether Respondent should be served.
THAT the costs of this application be in the Appeal.
It is supported by the application of Kenneth Mwenda and has the following grounds:
a) THAT the Respondents were served with a copy of the plaint and summons to appeal but refused to appeal or file defence.
b) THAT strangely the trial Magistrate dismissed the Appellant's suit and awarded costs to the Respondents.
c) THAT directions of this Court are necessary under the circumstances.
d) THAT it is clear that the trial Magistrate erred and the Appeal should be admitted to hearing.
On 17. 6.2015 this application was NOT certified urgent. On 22. 10. 2015, by consent, prayers 2, and 4 were allowed subject to the lower court's file being availed before the hearing of the Appeal. The appeal will be heard after it is served. I further direct that on a priority basis this court's Deputy Registrar initiates appropriate action to have the lower court's file availed and attached to this file before commencement of the hearing of the appeal.
Delivered in Open Court at Meru this 22nd day of October, 2015 in the presence of:
Cc. Daniel/Lilian
Rimita for the Appellant
Muthomi for the Respondent
P. M. NJOROGE
JUDGE