[2008] KEHC 3631 (KLR)
The court found that the trial magistrate acted on correct principles of law in refusing to set aside the judgment. The hearing was not ex parte as the appellant was present, and the hearing date was taken by consent after several adjournments. The underlying transaction was nullified under the Land Control Act,...
Source-derived case information.
- Citation
- [2008] KEHC 3631 (KLR)
- Parties
- Appellant: Obadiah Ndwiga Jason Muchiri; Respondent: Ndwiga Murangiri Muruambusi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 23 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Setting Aside Judgment, Land Control Act, Sale of Land, Adjournments, Finality of Litigation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Obadiah Ndwiga Jason Muchiri
Appellant
Ndwiga Murangiri Muruambusi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in refusing to set aside the judgment against the appellant.
- 2 Whether the sale of land transaction was nullified under the Land Control Act.
Ratio Decidendi
The court found that the trial magistrate acted on correct principles of law in refusing to set aside the judgment. The hearing was not ex parte as the appellant was present, and the hearing date was taken by consent after several adjournments. The underlying transaction was nullified under the Land Control Act, making the judgment correct. The appeal lacked merit and was dismissed, with costs awarded to the respondent.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 23 of 2003
OBADIAH NDWIGA JASON MUCHIRI………………APPELLANT
VERSUS
NDWIGA MURANGIRI MURUAMBUSI………..…RESPONDENT
JUDGMENT
This is an appeal against the ruling of Trial Magistrate made on 7/6/2002. The application was to set aside Judgment made in favour of plaintiff against the Appellant. The ruling was dismissed on the ground that the hearing was not exparte as the Defendant was present in court at the material time and that the court had given last adjournment on 16/8/2001 and the hearing date 6/9/2001 was taken by consent. The court also noted that there had been several adjournments and considerable delays in the case and in his view he correctly remarked that litigation must be brought to an end.
I have perused the Judgment and found that the Respondent’s claim was regarding a sale of land which was under Land Control Act. The transaction was nullified under the Act. The Judgment was correct. I find the Trial Magistrate acted on correct principles of law. I therefore find the appeal with no merit and the same is dismissed.
Costs to the Respondent.
Dated this 16th January, 2008.
J. N. KHAMINWA
JUDGE