Dr. Wilson Mwonga Ngoka v Anne Ndinda Ngoka

The court first asked what the appellant had actually sought below and found he had obtained the ex parte hearing and the certification of urgency he wanted. The chamber summons of 30 December 2003 was concerned exclusively with the mode of effecting service and was not attached to any substantive application. Because the appellant argued instead about the amended originating summons and the parties' rights, there was a striking mismatch between the application and the submissions. The Court of Appeal agreed there was no proper application before the superior court for determination and endorsed the declaration of a mistrial.

The court examined the appeal through the lens of what the appellant had actually sought below. Having concluded that the chamber summons was purely procedural and that the appellant's submissions were aimed at a different application, it held there was no proper application before the superior court for determination. The judge's decision to declare the hearing a mistrial, to direct the applicant to review his pending applications and take fresh dates in proper order, and to award costs against him therefore followed, and the seven grounds of appeal did not avail the appellant.

Perusing the entire record, the court found the appellant had made it a habit, almost a speciality, of filing numerous frivolous and vexatious applications which consumed judicial time and denied genuine litigants the opportunity to be heard. Although he had been granted a waiver of court fees, he treated that assistance as unlimited access to the court. Following its own recent decision in James Mwashori Mwakio v. The Attorney General & 2 others, the court held such assistance could be withdrawn and warned it would not hesitate to withdraw the appellant's waiver if he persisted.