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JudgmentJUDITH AKINYI OBUYA AND JUDITH OBUYA OMOLLA VS SAMWEL NIKWIGIZE2 min read

JUDITH AKINYI OBUYA AND JUDITH OBUYA OMOLLA VS SAMWEL NIKWIGIZE

High Court at Malindi High Court · · M Thande

 

  1. Before this Court for determination is a Notice of Motion dated 8.3.24 seeking:
  2. THAT this application be certified urgent, service be dispensed with thereof and the same be heard ex-parte in the first instance.< ></></></><><><>></></><><><>></></><><><>></></><><><>></></><><><>></>.< ></><>><>>> ><>><>></><><><>></></><><>><>><>><>>>, ></><><>44.  In these circumstances, what the Court ought to do when confronted with such circumstances is to consider the twin overriding principles of proportionality and equality of arms which are aimed at placing the parties before the Court on equal footing and see where the scales of justice lie considering the fact that it is the business of the court, so far as possible, to secure that any transitional motions before the Court do not render nugatory the ultimate end of justice. The Court, in exercising its discretion, should therefore always opt for the lower rather than the higher risk of injustice.

    1. I am also guided by the holding in Patel -vs- E.A. Cargo Handling Services Ltd [1974] EA 75 at page 76 C and E where the Court of Appeal stated:

    There are no limits or restrictions on the Judge’s discretion to set aside or vary an ex-parte judgement except that if he does vary the judgement, he does so on such terms as may be just. The main concern of the court is to do justice to the parties and the court will not impose conditions on itself to fetter the wide discretion given it by the rules.

    1. The circumstances herein are such that the prejudice that will be suffered by the Appellants should the orders not be granted, far outweigh that to be suffered by the Respondent, should the orders be granted. In exercise of its discretion therefore, the Court opts for the lower rather than the higher risk of injustice, namely to reinstate the application for hearing on merit, on terms that are just.

    1. The upshot is that the Application dated 8.3.24 is merited and allowed on the following terms:
    2. The application dated 1.2.24 is hereby reinstated for hearing on merit.
    3. The stay of execution granted shall remain in place.
    4. The Appellant shall file and serve submissions by 11.4.25. In default, the application dated 1.2.24 shall stand dismissed.
    5. Mention for compliance on 7.5.25.
    6. The Respondent shall have costs. 

    DATED, SIGNED and DELIVERED at Malindi this 28th day of March 2025


    JUDITH AKINYI OBUYA AND JUDITH OBUYA OMOLLA VS SAMWEL NIKWIGIZE JUDITH AKINYI OBUYA AND JUDITH OBUYA OMOLLA VS SAMWEL NIKWIGIZE