[2016] KEHC 7510 (KLR)
The High Court held that the applicant had not filed an appeal against the lower court's decision in the divorce proceedings, and that there is no legal provision allowing a miscellaneous application to challenge such a decision. The application was therefore procedurally incompetent and amounted to an abuse of the...
Source-derived case information.
- Citation
- [2016] KEHC 7510 (KLR)
- Parties
- Appellant: P I N; Respondent: F N
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 20 of 2016
- Procedural Posture
- Miscellaneous Application / Ruling on Preliminary Objection to Procedure
- Outcome
- application struck out as incompetent and an abuse of process
- Judges
- DN Musyoka
- Legal Topics
- Divorce Proceedings, Appeals Procedure, Jurisdiction of High Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
P I N
Appellant
F N
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Preliminary Objection to Procedure
Legal Issues
- 1 Whether a miscellaneous application is the proper procedure to challenge a lower court decision in divorce proceedings.
- 2 Whether the High Court has jurisdiction to entertain the application in the absence of a properly filed appeal.
Ratio Decidendi
The High Court held that the applicant had not filed an appeal against the lower court's decision in the divorce proceedings, and that there is no legal provision allowing a miscellaneous application to challenge such a decision. The application was therefore procedurally incompetent and amounted to an abuse of the court process. The court struck out the application with costs and discharged any interim orders previously granted.
Court Disposition
application struck out as incompetent and an abuse of process
Orders
- The application dated 11th February 2016 is struck out with costs.
- The interim orders made on 12th February 2016 are discharged.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MILIMANI
MISCELLANEOUS CIVIL APPLICATION NO. 20 OF 2016
P I N …………..……………………………… APPELLANT
AND
F N ………………………………..………… RESPONDENT
RULING
The proceedings herein were initiated by way of a Notice of Motion dated 11th February 2016. The application touches on proceedings that were being conducted in Milimani CMCDC No. 62 of 2014.
I called for the lower court file, which was availed and I have had occasion to peruse it. The divorce proceedings were concluded and it could appear that the order being challenged was founded on a post-judgment application.
The process of challenging, at the High Court, the decision of a lower court made in divorce proceedings is by way of filing an appeal against the impugned decision. There is no provision for filing a miscellaneous application to deal with such a decision.
I have perused the papers in the matter before me, and noted that no appeal was ever lodged against the decision the subject of the application that I am asked to determine. Procedurally, therefore, there is no basis or foundation for the application dated 11th February, 2016.
The said application is incompetent and an abuse of the court process. It is hereby struck out with costs. The interim orders made herein on 12th February 2016 are accordingly discharged.
DATED, SIGNED and DELIVERED at NAIROBI this 24TH DAY OF MARCH, 2016.
W. MUSYOKA
JUDGE