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Court of AppealStruck OutCivil Appeal No. 218 of 1995· [1996] KECA 55 (KLR)

Gabriel Mwaura Ng'ang'a v Lawrence Itube Ng'ang'a & another [1996] KECA 55 (KLR)

Court of Appeal
25 April 1996
RKR.O. KwachROR.S.C. OmoloPhilip Kiptoo TunoiP.K. Tunoi
202 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an entire appeal because the appellant obtained leave to appeal without serving the other side, denying them a hearing.

What this practically means

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Executive summary

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This short ruling of the Court of Appeal at Nairobi (Kwach, Omolo and Tunoi, JJ.A.) disposed of Civil Appeal No. 218 of 1995, which arose from a ruling of the High Court (A.B. Shah, J) dated 30 June 1994 in H.C.C.Succ. Cause No. 975 of 1993. Counsel for the appellant, Mr. Rumba Kinuthia, conceded that he had applied for and obtained leave to appeal without serving the application on the respondents, who were consequently not heard at all on the leave application. The court held that the respondents were entitled to be heard and that the appellant could not be allowed, at any rate in the Court of Appeal, to take advantage of an order irregularly obtained. On that basis the court allowed the respondents' motion, struck out the notice of appeal dated 17 October 1995, and struck out Civil Appeal No. 218 of 1995 in its entirety. The respondents were awarded the costs of both the motion and the appeal. The ruling is a succinct affirmation of the principle that a litigant cannot found an appeal on an ex parte order obtained in breach of the other party's right to be heard; the sanction here was the ultimate one - striking out the appeal altogether - together with costs against the appellant. The judgment is a single ruling of the whole court with no separate opinions and no authorities cited.

Key legal issues

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01

Whether an appeal founded on leave obtained ex parte without service on the respondents can stand

Holding

The appeal cannot stand; the respondents were entitled to be heard on the leave application and the appellant cannot benefit from the irregularity.

Reasoning

Counsel for the appellant conceded that he applied for and obtained leave to appeal without serving the respondents, who were consequently not heard at all. The court held that the respondents were entitled to be heard and that the appellant could not, at any rate in the Court of Appeal, be allowed to take advantage of an order irregularly obtained. The consequence was the striking out of the notice of appeal and the appeal itself, with costs to the respondents.

p. 1

Legal principles established

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  • A party cannot take advantage of an order irregularly obtained, in particular an ex parte order obtained without service on the affected party who was entitled to be heard.

Court orders

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  1. 1.The motion is allowed
  2. 2.The notice of appeal dated 17th October, 1995 is struck out
  3. 3.Civil Appeal No. 218 of 1995 is struck out
  4. 4.The respondents are awarded costs of both the motion and of the appeal
On appeal from
High Court of Kenya at Nairobi
H.C.C.Succ. Cause No. 975 of 1993
Jurisdiction invoked
Leave to appeal obtained ex parte; appeal struck out on grounds of procedural irregularity (natural justice)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gabriel Mwaura Ng'ang'a v Lawrence Itube Ng'ang'a & another [1996] KECA 55 (KLR)", Case Analysis (1996). Civil Appeal No. 218 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1996/55/eng@1996-04-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.