[2018] KEHC 5560 (KLR)

[2018] KEHC 5560 (KLR)

The court found that the orders of eviction were granted ex parte by the Kadhi's Court without evidence of service upon the appellant. This raised a serious issue of denial of the right to be heard, a fundamental principle of natural justice. The court held that the appeal was not frivolous and that a stay of...

Source-derived case information.

Citation
[2018] KEHC 5560 (KLR)
Parties
Appellant: Zubeda Mohamed Swaleh; Respondent: Hamisi Juma Hamisi
Court
High Court
Court Station
High Court at Mombasa
Jurisdiction
Kenya
Case Number
Family Appeal 24 of 2018
Procedural Posture
Family Appeal / Ruling on Stay Pending Appeal
Outcome
Stay of execution granted pending appeal; Kadhi's Court file to be called up for perusal and directions.
Judges
CA Otieno
Legal Topics
Stay of Execution, Ex Parte Orders, Right to Be Heard
Source Language
en
Family and Children Civil Procedure Stay of Execution Ex Parte Orders Right to Be Heard

Source-derived case record

Summary, issues, holding and outcome

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Parties

Zubeda Mohamed Swaleh

Appellant

Hamisi Juma Hamisi

Respondent

Procedural Posture

Family Appeal / Ruling on Stay Pending Appeal

Legal Issues

  1. 1 Whether the ex parte orders granted by the Kadhi's Court without evidence of service justify a stay pending appeal.
  2. 2 Whether the appellant was denied the right to be heard before being ordered to be evicted.

Ratio Decidendi

The court found that the orders of eviction were granted ex parte by the Kadhi's Court without evidence of service upon the appellant. This raised a serious issue of denial of the right to be heard, a fundamental principle of natural justice. The court held that the appeal was not frivolous and that a stay of execution pending appeal was warranted to prevent possible injustice. The court further invoked its supervisory jurisdiction under Article 165(6) of the Constitution to call up the Kadhi's Court file for perusal and further directions, given the gravity of the allegations.

Court Disposition

Stay of execution granted pending appeal; Kadhi's Court file to be called up for perusal and directions.

Orders

  • An order of stay pending appeal is granted in terms of Prayer 3.
  • The Deputy Registrar is directed to call up the Kadhi's Court file and place it before the judge within 7 days for perusal and directions.