[1998] KECA 169 (KLR)
The Court of Appeal allowed the appeal by consent of both parties, set aside the costs orders made in the superior and magistrate's courts, and directed that the suit proceed to hearing on merits in the Resident Magistrate's court at Kitui. The court exercised its discretion to ensure that justice is served by...
Source-derived case information.
- Citation
- [1998] KECA 169 (KLR)
- Parties
- Appellant: Mutukaa Kitetu Mitau; Respondent: Mary Mitau
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- ? 1 of 1998
- Procedural Posture
- Civil Appeal / Judgment on Interlocutory Appeal
- Outcome
- Appeal allowed by consent; previous costs orders set aside; suit remitted for hearing on merits.
- Judges
- JE Gicheru, AB Shah
- Legal Topics
- Appeal Procedure, Costs Orders, Remittal to Lower Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mutukaa Kitetu Mitau
Appellant
Mary Mitau
Respondent
Procedural Posture
Civil Appeal / Judgment on Interlocutory Appeal
Legal Issues
- 1 Whether the appeal should be allowed to enable the substantive hearing to proceed on merits in the magistrate's court.
- 2 Whether the costs orders made in the superior and magistrate's courts should be set aside.
Ratio Decidendi
The Court of Appeal allowed the appeal by consent of both parties, set aside the costs orders made in the superior and magistrate's courts, and directed that the suit proceed to hearing on merits in the Resident Magistrate's court at Kitui. The court exercised its discretion to ensure that justice is served by allowing the substantive dispute to be determined on its merits, and found it appropriate to make no order as to costs given the parties' agreement.
Court Disposition
Appeal allowed by consent; previous costs orders set aside; suit remitted for hearing on merits.
Orders
- The appeal is allowed with no order as to costs.
- The order of costs made in the superior court against the appellant is set aside.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, SHAH & LAKHA, JJ.A.)
CIVIL APPEAL NO. 1 OF 1998
BETWEEN
MUTUKAA KITETU MITAU.......................……………...............APPELLANT
AND
MARY MITAU.........................……………………......................RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Machakos (Honourable Mr. Justice John W. Mwera) dated the 2nd day of October, 1997 in H.C.C.A. NO. 89 OF 1991) ************
JUDGMENT OF THE COURT
Both counsel have agreed that this appeal be allowed with no order as to costs so that the substantive hearing may proceed on merits in the magistrate's court. We agree. The orders of this court therefore are that this appeal be and is hereby allowed with no order as to costs; that the order of costs made in the superior court against the appellant be and is hereby set aside; that the suit do proceed to hearing in the Resident Magistrate's court at Kitui on merits; that the order for costs made in the Resident Magistrate's court at Kitui be and is hereby set aside.
Dated and delivered at Nairobi this 27th day of April, 1998.
J. E. GICHERU
.................
JUDGE OF APPEAL
A. B. SHAH
.................
JUDGE OF APPEAL
A. A. LAKHA
..................
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR