[2008] KEHC 3526 (KLR)
The court found that the order denying the applicant audience in the lower court without affording him the right to be heard was unjust and appealable. The refusal by the lower court to grant leave to appeal did not preclude the appellate court from considering the application. The court exercised its discretion to...
Source-derived case information.
- Citation
- [2008] KEHC 3526 (KLR)
- Parties
- Appellant: Labanson Maina Mutugi; Respondent: Francis Mwangi Mutugi; Respondent: Teresia Wanjiru Mburi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 103 of 2007
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Leave to Appeal and Extension of Time
- Outcome
- application allowed
- Legal Topics
- Leave to Appeal, Extension of Time, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Labanson Maina Mutugi
Appellant
Francis Mwangi Mutugi
Respondent
Teresia Wanjiru Mburi
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Leave to Appeal and Extension of Time
Legal Issues
- 1 Whether the applicant should be granted leave to appeal against the order denying him audience in court.
- 2 Whether the court should extend time for filing an appeal against the order made on 14/3/2007.
- 3 Whether the denial of audience without a hearing is appealable.
Ratio Decidendi
The court found that the order denying the applicant audience in the lower court without affording him the right to be heard was unjust and appealable. The refusal by the lower court to grant leave to appeal did not preclude the appellate court from considering the application. The court exercised its discretion to grant leave to appeal and extended the time for filing the appeal, holding that the applicant should not be deprived of the opportunity to challenge an order that potentially violated his right to a fair hearing.
Court Disposition
application allowed
Orders
- Leave to appeal against the order made on 14/3/2007 in Kerugoya CC No. 316 of 2005 is granted.
- The applicant shall file the appeal within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Misc Appli 103 of 2007
LABANSON MAINA MUTUGI……………………....………APPELLANT
VERSUS
FRANCIS MWANGI MUTUGI………………………1ST RESPONDENT
TERESIA WANJIRU MBURI……………….………2ND RESPONDENT
RULING
Application dated 25/9/2007 seeks orders:-
1. Stay of proceedings in Kerugoya Civil Case No. 316 of 2005 pending determination of this application.
2. That court do grant the applicant leave to appeal against the court order made on 14/3/2007 in Kerugoya CC No. 316 of 2005 and
3. That court extend time with which to file an appeal against the order made on 14/3/2007 in that aforementioned case.
The application is brought under:
1. Section 3 A CPA which reserved the interest powers of court.
2. Section 79 G. of CPC Act which prescribes the time for filing an appeal.
3. Order 49 rule 5 CPC which deals with extension of time.
Regarding leave to appeal against orders covered by order 42 (2) shall in the first instance be made to the court making the order. The order intended to be appealed against is exhibited as “LMMI”. A copy of the ruling is also exhibited in that ruling the trial Magistrate ordered that the applicant herein has no audience in court. That should have brought the proceedings to a halt! It will be seen that in the cited authority Hon. Justice Mwera simply adjourned the proceedings until the orders were obeyed. Also in that case the issue was of giving an undertaking as to damages.
It is my view that the order denying the Applicant audience before the court without giving him right to be heard is appealable. It was unjust to proceed without proper hearing. The lower court refused to grant leave to appeal and it is clear in such a case the appellate court is entitled to consider an application for leave. Upon consideration, I hereby grant the leave. Appeal to be filed within the next 14 days. The costs of this application shall be in the cause.
Dated this 11th February, 2008.
J. N. KHAMINWA
JUDGE
11/2/2008
Khaminwa – Judge
Njue – Clerk
Ms Wairimu HB
Mrs Njeru HB
Read in open court.
J. N. KHAMINWA
JUDGE