[2009] KEHC 3513 (KLR)
The court held that since Hon. Mr. Justice Emukule, who issued the original orders, was still attached to the court, he was the proper judge to hear the application for review. The proceedings before another judge on the review application were therefore irregular and expunged from the record. The matter was...
Source-derived case information.
- Citation
- [2009] KEHC 3513 (KLR)
- Parties
- Appellant: Kenya Wildlife Services; Respondent: Abdullahi Adan
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 82 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Stay of Execution
- Outcome
- Proceedings before the wrong judge expunged; matter referred to original judge; stay of execution granted until further orders.
- Judges
- MM Kasango, MJA Emukule
- Legal Topics
- Review of Orders, Dismissal for Want of Prosecution, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Wildlife Services
Appellant
Abdullahi Adan
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Stay of Execution
Legal Issues
- 1 Whether the application for review should be heard by the judge who issued the original orders.
- 2 Whether the proceedings before a different judge on the review application were valid.
- 3 Whether a stay of execution should be granted pending further orders.
Ratio Decidendi
The court held that since Hon. Mr. Justice Emukule, who issued the original orders, was still attached to the court, he was the proper judge to hear the application for review. The proceedings before another judge on the review application were therefore irregular and expunged from the record. The matter was referred back to Hon. Mr. Justice Emukule for directions on the hearing of the application. In the interest of justice, a stay of execution was granted in the lower court case and for costs in the appeal until further orders.
Court Disposition
Proceedings before the wrong judge expunged; matter referred to original judge; stay of execution granted until further orders.
Orders
- The proceedings of 19th May 2009 before the current judge are expunged from the record.
- The application for review is referred to Hon. Mr. Justice Emukule for directions.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 82 of 2006
KENYA WILDLIFE SERVICES …………………… APPELLANT
VERSUS
ABDULLAHI ADAN ……..........................……….. RESPONDENT
RULING
The appellant filed an appeal in this matter against the lower court’s judgment of 28th July 2006. The respondent by an application dated 24th April 2008 sought the dismissal of the appeal for want of prosecution. That application was heard by the Hon. Mr. Justice Emukule on 16th March 2009. On that date the honourable judge granted orders for dismissal of the appeal and vacated the stay orders granted to the appellant. The appellant filed an application dated 13. 5.2009 seeking review of the orders granted by Hon. Mr. Justice Emukule. When that application came before me for hearing, both counsels for the appellant and the respondent failed to bring it to my attention that the orders for review were issued by Hon. Mr. Justice Emukule. Had counsel’s brought that to my notice, I would have been mindful of Order XLIV Rule 4(1) which provides:-
“If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to the court at the time the application comes up for hearing.”
In this case, Hon. Mr. Justice Emukule is still attached to this court. He is accordingly the right person to entertain the appellant’s application dated 13th May 2009. I therefore without much a do hereby expunge from the record the proceedings of 19th May 2009, when the said application was argued before me. This matter shall be referred to the Hon. Mr. Justice Emukule for purpose of giving directions on the hearing of that application. The interest of justice however demand that a stay of execution in CMCC No. 787 of 2003 and stay of execution for costs in this matter be granted until further orders of the court.
Orders accordingly.
MARY KASANGO
JUDGE
Dated and delivered at Meru this 12th …day of June…. 2009.
M.J.A. EMUKULE
JUDGE