[2015] KEHC 4198 (KLR)
The court found that the applicant failed to provide any substantiated evidence of procedural impropriety, fraud, or denial of due process in the lower court proceedings. The lower court case had been concluded, and execution was at an advanced stage, with the applicant having already benefited from orders allowing...
Source-derived case information.
- Citation
- [2015] KEHC 4198 (KLR)
- Parties
- Applicant: Samson Mwenga Musili; Respondent: Katheu Mboni
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 94 of 2013
- Procedural Posture
- Miscellaneous Application / Ruling on Application for Transfer and Review of Lower Court Proceedings
- Outcome
- application dismissed with costs
- Judges
- BT Jaden
- Legal Topics
- Transfer of Proceedings, Execution of Judgments, Setting Aside Ex Parte Judgment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Samson Mwenga Musili
Applicant
Katheu Mboni
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application for Transfer and Review of Lower Court Proceedings
Legal Issues
- 1 Whether the High Court should transfer Civil Case No. 137 of 2011 to another court of competent jurisdiction.
- 2 Whether the High Court should call for and review the lower court file for legality of proceedings.
- 3 Whether the applicant was denied due process in the lower court, including service of summons and notices.
Ratio Decidendi
The court found that the applicant failed to provide any substantiated evidence of procedural impropriety, fraud, or denial of due process in the lower court proceedings. The lower court case had been concluded, and execution was at an advanced stage, with the applicant having already benefited from orders allowing payment by instalments. There was no appeal or application for review of the lower court's orders. The mere allegations of forgery, cheating, and bribery, without supporting evidence, were insufficient to warrant the transfer of the case or the calling up of the lower court file for review. Consequently, the application lacked merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application dated 15th May 2013 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
MISC. CIVIL APPLICATION NO. 94 OF 2013
SAMSON MWENGA MUSILI..........................PLAINTIFF/APPLICANT
VERSUS
KATHEU MBONI.......................................DEFENDANT/RESPONDENT
RULING
1. The application dated 15th May 2013 seeks orders for the transfer of Civil Case No. 137 of 2011 Katheu Mboni vs. Samson Mwenga Musili to another court of competent jurisdiction for hearing and determination.
2. In the alternative, that this court be pleased to call the file in Kitui Chief Magistrate Case No. 137 of 2011 Katheu Mboni vs. Samson Mwenga Musili to peruse the same and satisfy itself as to the legality of the proceedings and thereafter make any orders as it may deem appropriate.
3. According to the affidavit in support, the Respondent who was the Defendant in the lower court case was not served with summons to enter appearance, notice of entering judgment or the notice to show cause why execution should not issue. That the Applicant ended in civil jail, forcing him to pay part of the decretal sum to regain his freedom. The Applicant made allegations of forgery, cheating and bribery against the lower court, hence the dismissal of his application.
4. The application is opposed. Grounds of opposition and a replying affidavit were filed. The Respondent’s case is that the lower court case was heard and concluded and only execution proceedings are pending. That the Applicant’s application to set aside the ex-parte judgment was dismissed and the Applicant did not file any appeal or application for review. That the Applicant’s application for payment by instalments was allowed and the Applicant allowed to satisfy the decree accordingly.
5. Parties agreed to canvass the application by way of written submissions. The Respondent has filed his submissions but the Applicant did not file any. I have considered the said written submissions.
6. It is common ground that the lower court case is at the stage of execution. The execution proceedings are at an advanced stage, with the Applicant having been in and out of civil jail and with orders for payment of the decretal sum by instalments already on record. There is no appeal or application for review of the orders of the lower court. The Applicant has only made unsubstantiated allegations of forgery, cheating and bribery on the part of the lower court.
7. With the foregoing, I find no merits in the application and dismiss the same with costs.
………………………………………
B. THURANIRA JADEN
Dated and delivered at Machakos this 7th day of May, 2015
………………………………………
B. THURANIRA JADEN
JUDGE