[2024] KEELC 13949 (KLR)
The court found that a procedural error occurred when the application dated 18/10/2024 was dismissed for non-attendance, and that neither party had been notified or given an opportunity to be heard. In the interests of justice and by virtue of the court's inherent powers, the dismissal order was vacated ex debito...
Source-derived case information.
- Citation
- [2024] KEELC 13949 (KLR)
- Parties
- Applicant: Gladys Andrew Mulewa; Respondent: Kahindi Charo Mhambi (As Administrator Ad Litem of the Estate Of Charo Mhambi Kaloki)
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E023 of 2024
- Procedural Posture
- Environment and Land Appeal / Ruling on Interlocutory Application
- Outcome
- Order of dismissal of the application dated 18/10/2024 vacated; ruling on application dated 31/5/2024 deferred; matter listed for mention for directions.
- Judges
- FM Njoroge
- Legal Topics
- Leave to Appeal Out of Time, Vacation of Dismissal Orders, Land Ownership Dispute, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gladys Andrew Mulewa
Applicant
Kahindi Charo Mhambi (As Administrator Ad Litem of the Estate Of Charo Mhambi Kaloki)
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Interlocutory Application
Legal Issues
- 1 Whether the court should grant leave to appeal out of time against the judgment of the lower court.
- 2 Whether the dismissal order of the application dated 18/10/2024 should be vacated due to procedural error.
- 3 Whether the ruling on the earlier application should be deferred pending determination of the current application.
Ratio Decidendi
The court found that a procedural error occurred when the application dated 18/10/2024 was dismissed for non-attendance, and that neither party had been notified or given an opportunity to be heard. In the interests of justice and by virtue of the court's inherent powers, the dismissal order was vacated ex debito justitiae. The court further held that the ruling on the earlier application dated 31/5/2024 should be deferred until the application for leave to appeal out of time is determined, to ensure that all parties are accorded a fair hearing and that the administration of justice is not compromised by procedural irregularities.
Court Disposition
Order of dismissal of the application dated 18/10/2024 vacated; ruling on application dated 31/5/2024 deferred; matter listed for mention for directions.
Orders
- The order of dismissal of the application dated 18/10/2024 recorded on 19/11/2024 is hereby vacated ex debito justitiae.
- The ruling on the application dated 31/5/2024 is deferred until after the application dated 18/10/2024 has been determined.
Full Case Text
Judgment text and source record
18 paragraphs
Mulewa v Mhambi (As Administrator Ad Litem of the Estate of Charo Mhambi Kaloki) (Environment and Land Appeal E023 of 2024) [2024] KEELC 13949 (KLR) (18 December 2024) (Ruling)
Neutral citation: [2024] KEELC 13949 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment and Land Appeal E023 of 2024
FM Njoroge, J
December 18, 2024
Between
Gladys Andrew Mulewa
Applicant
and
Kahindi Charo Mhambi (As Administrator Ad Litem of the Estate Of Charo Mhambi Kaloki)
Respondent
Ruling
1. The appellant filed an application dated 18/10/2024 in which he seeks leave to appeal out of time against the whole of the judgment of J. Ongondo SPM delivered on 28/5/2024 in Malindi Land Case No 26 of 2018. The grounds on which it is premised set out at its foot and they are elaborated on in the applicant’s Counsel’s supporting affidavit attached to the motion. They are namely: that the applicant is the beneficial owner of a share of land portion no Kilifi/Jilore /154 having purchased the same for valuable consideration; the lower court delivered its judgment on 28/5/2024 in favour of the respondent granting him possession of the property; stay of execution as well as a restraining order were sought in a motion dated 31/5/24, but by oversight on the part of counsel dealing, an order of leave to appeal out of time was not sought therein, hence the present application to cure the defect. That application wwas dismissed for non attendance on 19/11/2024 in the absence of both parties.
2. It has come to the attention of this court that an error occurred which none of the parties in the case pointed out, and which may have an adverse effect on the administration of justice in this case, when the court fixed the ruling on the first application datd 31/5/2024 for delivery of ruling on 18/12/2024 while the application dated 18/10/2024 had not been heard. The file was retained in chambers for the preparation of the ruling in the application dated 31/5/2024 and this court is of the view that if the file was to leave the chambers for any hearing or any other reasons all the parties deserved to be informed.
3. For the foregoing reasons and by the inherent power of the court and in the interests of justice for all parties, I order that order of dismissal of the application dated 18/10/2024 recorded on 19/11/2024 is hereby vacated ex debito justitiae. Consequently, as earlier intended the ruling on the application dated 31/5/2024 needs to be and is hereby deferred till after the application dated 18/10/2024 has been deferred, to be delivered simultaneously with or after the ruling in the application dated 18/10/24 has been delivered. This appeal shall be listed for mention on 16/1/2025 for directions regarding both applications.
RULING DATED, SIGNED AND DELIVERED AT MALINDI VIA ELECTRONIC MAIL ON THIS 18TH DAY OF DECEMBER 2024. MWANGI NJOROGEJUDGE, ELC, MALINDI