[2018] KEELC 3579 (KLR)
The court found that the application, though not citing specific legal provisions, was in substance an attempt to appeal or vary the judgment on costs, which should be addressed through the appellate process and not by way of an application before the same court. The court agreed with the appellants that the issues...
Source-derived case information.
- Citation
- [2018] KEELC 3579 (KLR)
- Parties
- Appellant: Madarina Mwari; Appellant: Dickson Kinja; Respondent: Jane Kathure Ezekiel
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay and Variation of Costs Order
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Variation of Orders, Costs Award, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Madarina Mwari
Appellant
Dickson Kinja
Appellant
Jane Kathure Ezekiel
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay and Variation of Costs Order
Legal Issues
- 1 Whether the applicant was denied an opportunity to be heard before the costs order was made.
- 2 Whether the orders for costs were obtained fraudulently or through concealment of material facts.
- 3 Whether the application amounts to an appeal against the judgment and should be raised in the appellate forum.
Ratio Decidendi
The court found that the application, though not citing specific legal provisions, was in substance an attempt to appeal or vary the judgment on costs, which should be addressed through the appellate process and not by way of an application before the same court. The court agreed with the appellants that the issues raised were not properly before it and dismissed the application. The respondent was ordered to pay the costs of the application, and the lower court file was directed to be remitted to the magistrate's court for further determination.
Court Disposition
application dismissed
Orders
- The application dated 23.11.2017 is dismissed.
- The respondent, Jane Kathure Ezekiel, is condemned to pay costs of the present application.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT
AT MERU
CIVIL APPEAL NO 90 OF 2012
MADARINA MWARI..................................1ST APPELLANT
DICKSON KINJA........................................2ND APPELLANT
VERSUS
JANE KATHURE EZEKIEL...........................RESPONDENT
RULING
1. The application dated 23. 11. 2017 and filed on 29. 11. 2017 seeks orders of stay of execution of the orders given on 24th October 2017 directing the respondent/applicant to bear the costs of the suit. Applicant desires that the said orders be set aside, varied or vacated.
2. The grounds upon which the application is brought are that applicant was not given an opportunity to be heard and that the orders complained of are irregular. She further states that the orders were obtained fraudulently. She states that she is a widow with five children.
3. Applicant has also filed a supporting affidavit, where she avers that the orders given by the court on 24. 10. 2017 were obtained fraudulently, through concealment of material facts.
4. Grounds of opposition have been filed where by the appellants aver that the application amounts to an appeal against the court’s judgment.
5. The brief history of this case is that there exists case no. PMCC 108 of 2011 at Nkubu court where appellant in the present case was the defendant whereas the respondent in this suit was the plaintiff. The plaintiff had sought for eviction orders at the interlocutory stage which orders were allowed vide the magistrate’s ruling dated 26. 9.2012. It is this which triggered the present appeal whereby I delivered a judgment on 24. 10. 2017 in favour of the appellants (defendants).
6. The application brought forth by the respondent seeks to vary the judgment in so far as the respondent was condemned to pay costs of the suit.
7. Submissions have been filed in respect of the present application. I find that though no particular provisions of the law have been cited upon which the application is filed, it is quite apparent that the prayers are couched in the format of an appeal.
8. I am therefore in agreement with the appellants submissions that the issues raised in the application ought to be raised in the appellate forum and not before this court.
9. The application dated 23. 11. 2017 is hereby dismissed. The respondent (in the suit) Jane Kathure Ezekiel is condemned to pay costs of the present application.
10. I further direct that the lower court file Nkubu PMCC No. 108/11 be remitted back forthwith to Nkubu Magistrates court for determination.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 18th APRIL, 2018 IN THE PRESENCE OF:-
Court Assistant:Janet/Galgalo
H. Gitonga for appellant
Respondent absent
HON. LUCY. N. MBUGUA
ELC JUDGE