[2024] KEHC 3364 (KLR)
The court found that the trial court did not err in granting the ex parte orders on 23rd September 2019. The hearing date was taken by consent of all parties, and the appellant was on a last adjournment. The appellant and his advocate had sufficient notice and opportunity to attend court or arrange representation...
Source-derived case information.
- Citation
- [2024] KEHC 3364 (KLR)
- Parties
- Appellant: Herbert Ojiambo Ong’Ang’O; Respondent: Wilson Onyango Mauda
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 2020
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs to the respondent
- Judges
- WM Musyoka
- Legal Topics
- Adjournment of Hearing, Ex Parte Orders, Setting Aside Orders, Court Discretion, Costs Award
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Herbert Ojiambo Ong’Ang’O
Appellant
Wilson Onyango Mauda
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in granting ex parte orders on 23rd September 2019 in the absence of the appellant or his advocate.
- 2 Whether the trial court exercised its discretion properly in refusing to set aside the orders made on 23rd September 2019.
- 3 Whether the appellant was denied a fair opportunity to be heard due to absence of the court file and subsequent proceedings.
Ratio Decidendi
The court found that the trial court did not err in granting the ex parte orders on 23rd September 2019. The hearing date was taken by consent of all parties, and the appellant was on a last adjournment. The appellant and his advocate had sufficient notice and opportunity to attend court or arrange representation but failed to do so. The trial court had already accommodated the parties multiple times, and there was no evidence of improper exercise of discretion. The principle of finality in litigation required that the matter not be delayed further. Consequently, the appeal lacked merit and was dismissed with costs to the respondent.
Court Disposition
appeal dismissed with costs to the respondent
Orders
- The appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
23 paragraphs
Ong’ang’o v Mauda (Civil Appeal 11 of 2020) [2024] KEHC 3364 (KLR) (22 March 2024) (Judgment)
Neutral citation: [2024] KEHC 3364 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal 11 of 2020
WM Musyoka, J
March 22, 2024
Between
Herbert Ojiambo Ong’Ang’O
Appellant
and
Wilson Onyango Mauda
Respondent
(An appeal arising from the ruling of Hon. RN Ng’ang’a, Resident Magistrate, RM, delivered on 9**{{^**th**}}** July 2020, in Busia CMCSC No. 1376 of 2018)
Judgment
1. The appeal arises from ruling dated 25th July 2020, allegedly delivered on 9th July 2020. It arose from an application, dated 4th December 2019, which had sought stay of further proceedings, and registration of orders that had been issued on 23rd September 2019, orders to restrain interfering with a house of the applicant on Bukhayo/Bugengi/452, and the setting aside of the orders made on 4th October 2019.
2. That application was brought by Moses Wanyama Onyango, Advocate on behalf of his client the appellant herein. The Advocate stated that he was engaged that day in conducting proceedings at the High Court, hence he could not attend to the matter at the trial court, and that he was not free until 12. 50 PM. When he checked at the trial court, at 1. 20 PM, he established that the file had not been brought to the trial court. He later rushed to hospital, to take his son there. His client, the appellant, was also not available to attend court. The Advocate was called at 4. 00 PM, presumably on phone, to be informed that the matter had been called out, and the application for the other side allowed. He stated that the proceedings should have been conducted orally, but the trial court handled it in a summary manner. He averred that his client had a good case.
3. Francis Nyengenye Were, who is not party to this appeal, supported the application. He indicated that the file was not available that morning, and was being searched for at the registry, and the general understanding was that once the file was traced, the parties would be given another date for hearing. When the file was eventually found, according to Mr Were, the respondent apparently proceeded ex parte, in the absence of the other parties.
4. The trial record reflects that the matter had come up on 16th September 2019. The matter was adjourned due to absence of the Advocate for one of the parties. The appellant’s Advocate did not oppose the application for adjournment, although the respondents, in that matter, indicated to the trial court that they were ready to proceed. The matter was allocated 23rd September 2019 for hearing, and the respondents, that is to say the appellant herein and another, were condemned to pay court adjournment fees.
5. Come 23rd September 2019, the Advocate for the respondent herein was present before the trial court, but the Advocates for the other parties were absent. The respondent complained before the trial court that the other parties had been condemned to pay court adjournment fees, which they failed to, forcing him to pay, to enable the matter go forward. He argued that the date had been given by the trial court by consent of all the parties. The trial court noted that the date had been taken by consent, the matter was on last adjournment and the respondents had failed to pay court adjournment fees.
6. Can the trial court be faulted for making the orders of 23rd September 2019? I do not think so. The respondent was party to the adjournment of 16th September 2019. Having caused that adjournment, he should have striven to ensure that the matter proceeds at the next hearing on 23rd September 2019. The date had been allocated in open court, in the presence of and by consent of the parties, and the appellant was on a last adjournment. The matter was called out at 4. 00 PM, according to the appellant, which meant that the appellant, or his Advocate, had all the time to arrange to be in court or to get an Advocate to hold his brief. I am not persuaded that the trial court did not exercise discretion properly. There ought to be an end to litigation. The court had bent over backwards several times to accommodate the parties. There can be no endless elasticity to lenience by the court.
7. I find no merit in the appeal herein, and I do hereby dismiss it, with costs to the respondent.
JUDGMENT DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA ON THIS 22ND DAY OF MARCH 2024WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Wanyama, instructed by Wanyama & Company, Advocates for the appellant.Mr. Magina, instructed by Kibet Adoli & Magina, Advocates for the respondent.TABLE2