[2015] KEHC 6820 (KLR)
The High Court found that the applicant did not utilize the proper legal avenues available to him, namely applying to set aside the interlocutory judgment or seeking judicial review of the Kadhi's court proceedings. The application to stay delivery of judgment and transfer the suit was deemed unprocedural and...
Source-derived case information.
- Citation
- [2015] KEHC 6820 (KLR)
- Parties
- Applicant: S G; Respondent: T M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 158 of 2014
- Procedural Posture
- Miscellaneous Application / Ruling on Interlocutory Motion
- Outcome
- application dismissed with costs
- Judges
- DN Musyoka
- Legal Topics
- Transfer of Suit, Stay of Proceedings, Setting Aside Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
S G
Applicant
T M
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Interlocutory Motion
Legal Issues
- 1 Whether the High Court should stay delivery of judgment in Nyeri Kadhi's Court Case No. 7 of 2014.
- 2 Whether the suit before the Kadhi's court should be transferred to Nairobi for hearing and disposal.
- 3 Whether the applicant followed the correct procedure in seeking relief from the High Court.
Ratio Decidendi
The High Court found that the applicant did not utilize the proper legal avenues available to him, namely applying to set aside the interlocutory judgment or seeking judicial review of the Kadhi's court proceedings. The application to stay delivery of judgment and transfer the suit was deemed unprocedural and lacking in justification. The court held that the applicant should have sought relief in the Kadhi's court or, if aggrieved by its conduct, commenced judicial review proceedings. As no sufficient basis was established for the orders sought, the application was dismissed with costs, and the stay previously granted was lifted.
Court Disposition
application dismissed with costs
Orders
- The application dated 15th September 2014 is dismissed with costs.
- The Kadhi's court may proceed to deliver judgment in Nyeri Kadhi's Court Case No. 7 of 2014.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MIS. APPLICATION NO: 158 OF 2014 (OS)
S G………. ………………………..…....APPLICANT
VERSUS
T M………..………. …..………..…..RESPONDENT
RULING
1. The Motion dated 15th September 2014 seeks two principal orders – that the Nyeri Kadhi’s court be stopped from delivering a judgment in Kadhi’s Case No. 7 of 2014 and that the said case be transferred to Nairobi for hearing and disposal.
2. The grounds upon which the application is premised are on the face of the application and in the facts set out in the affidavit of the applicant sworn on 15th September 2014.
3. The applicant is the defendant in the case before the Kadhi’s court. He pleads that after he was served with summons to enter appearance, he went to Nyeri and sought to enter appearance and file defence, but he was turned away by the staff at the court registry. He was eventually allowed by the Kadhi to file his response, but by then the matter had already proceeded without his input.
4. The respondent has replied to the application dated 15th September 2014. She avers that the applicant failed to enter appearance and file defence within the time stipulated in law, and she requested for judgment, whereupon the court fixed the matter for formal proof. The court took her evidence and that of her witness, and thereafter fixed the matter for judgment. She pleads that the respondent had been properly served.
5. Where an interlocutory judgment is entered against a party who has failed to appear within the stipulated period, there are provisions in the relevant law providing for the filing of applications to set aside the interlocutory judgment and to expand time for filing defence. This is the route that the applicant ought to have taken in the matter. He did not avail himself of the opportunity.
6. The applicant complains that the Kadhi’s court handled him in a manner that was not procedural. It was open to him to move the High Court to quash the proceedings before the Kadhi’s court by commencing proceedings by way of judicial review.
7. As it is the approach to the High Court by the applicant to stay delivery of judgment was unprocedural. The applicant ought to have formally applied to the Kadhi’s court for accommodation. He could have waited for the judgment to be determined and move thereafter to have it set aside and for leave to file his replies to the claim against him.
8. On transfer of the suit, no basis or justification has been laid for such transfer.
9. I am not satisfied that the orders sought in the said application dated 15th September 2014 are for granting. Consequently, I do hereby dismiss the application with costs. The Kadhi’s court may proceed to deliver judgment in Nyeri Kadhi’s Court Case No.7 of 2014. The order made on 16th September 2014 staying the proceedings in Nyeri Kadhi’s Court Case No. 7 of the 2014 is hereby discharged. It is so ordered.
DATED, SIGNED and DELIVERED at NAIROBI this 30th DAY OF January 2015.
W. MUSYOKA
JUDGE