[2024] KEELC 14049 (KLR)
The court found that the dismissal of the application dated 18/10/2024 for non-attendance was occasioned by an oversight and that neither party had pointed out the error. In the interests of justice and by virtue of the court's inherent powers, the court held that the order of dismissal should be vacated ex debito...
Source-derived case information.
- Citation
- [2024] KEELC 14049 (KLR)
- Parties
- Applicant: Gladys Andrew Mulewa; Respondent: Kahindi Charo Mhambi (As administrator 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 & Land Miscellaneous Case E023 of 2024
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Application to Set Aside Dismissal and Defer Ruling
- Outcome
- Order of dismissal of the application dated 18/10/2024 is vacated; ruling on the application dated 31/5/2024 is deferred; matter listed for mention for directions.
- Judges
- FM Njoroge
- Legal Topics
- Leave to Appeal Out of Time, Setting Aside Dismissal, Land Ownership Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gladys Andrew Mulewa
Applicant
Kahindi Charo Mhambi (As administrator of the Estate of Charo Mhambi Kaloki)
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Application to Set Aside Dismissal and Defer Ruling
Legal Issues
- 1 Whether the dismissal of the application dated 18/10/2024 for non-attendance should be set aside in the interests of justice.
- 2 Whether the ruling on the application dated 31/5/2024 should be deferred pending determination of the application dated 18/10/2024.
Ratio Decidendi
The court found that the dismissal of the application dated 18/10/2024 for non-attendance was occasioned by an oversight and that neither party had pointed out the error. In the interests of justice and by virtue of the court's inherent powers, the court held that the order of dismissal should be vacated ex debito justitiae. The court further determined 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 heard and determined, to ensure that all parties are accorded a fair opportunity to be heard and to avoid prejudicing the administration of justice. The matter was listed for mention for directions...
Court Disposition
Order of dismissal of the application dated 18/10/2024 is vacated; ruling on the application dated 31/5/2024 is 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 of the Estate of Charo Mhambi Kaloki) (Environment & Land Miscellaneous Case E023 of 2024) [2024] KEELC 14049 (KLR) (18 December 2024) (Ruling)
Neutral citation: [2024] KEELC 14049 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Miscellaneous Case E023 of 2024
FM Njoroge, J
December 18, 2024
Between
Gladys Andrew Mulewa
Applicant
and
Kahindi Charo Mhambi (As administrator 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 was 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 NJOROGE*JUDGE, ELC, MALINDI