Chorui M’nabea alias Anterena Soroi v Joshua Mitheka & Martin Mwenda [2018] KEHC 6481 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURTOF KENYA

AT MERU

CIVIL APPEAL NO. 89 OF 2017

CORAM: D. S. MAJANJA J.

BETWEEN

CHORUI M’NABEA ALIAS ANTERENA SOROI.....APPELLANT

AND

JOSHUA MITHEKA.............................................1ST RESPONDENT

MARTIN MWENDA.............................................2ND RESPONDENT

(Being an appeal from the Ruling and Orderof Hon. L. Ambasi, CM

dated 14th September 2017 at the Chief Magistrates Court

at Meru in Civil Case No. 27 of 2010)

JUDGMENT

This appeal is against an order made by the trial magistrate on 14th September 2017 dismissing the appellant’s application to set aside a dismissal order made on 22nd August 2017. It is apparent from the record that the application was dismissed ex-parte without affording the appellant’s advocate to be heard on the same. This constitutes a wrongful exercise of discretion. Accordingly, this appeal is allowed. The order of 14th September 2017 is set aside and the application dated 12th September 2017 is reinstated for hearing. It shall be heard by any other magistrate other than Hon. L. Ambasi, CM. There shall be no orders as to costs.

DATEDandDELIVEREDatKISUMUthis30th day of May 2018.

D.S. MAJANJA

JUDGE

Mr Ariithi instructed by Kiogora Ariithi and Associates Advocates for the appellant.

Njeru Ithiga & Company Advocates for the respondents.