Mutiso v Mutiso [1984] KECA 46 (KLR)
- Court
- Court of Appeal
- Case number
- 46
- Citation
- [1984] KECA 46 (KLR)
- Decided
- 4 May 1984
We allow the appeal on ground 3 of the memorandum of appeal and set aside Nyarangi J’s order of February 17, 1983. We remit the case to the High Court to be decided according to law, under order XXXVI rule 10, or otherwise, as the case may be.
Facts
The case involved a dispute between Mutiso and Mutiso regarding the appropriateness of an originating summons, with evidence and issues arising from section 134 of the Evidence Act.
Issues
- Whether the judge was entitled to dismiss the husband's originating summons without hearing the parties.
- Whether the judge's dismissal was in accordance with the fundamental principle of justice that both parties should be heard before a decision is reached.
Reasoning
The court considers that the judge did not follow the fundamental principle of justice by not hearing the parties before dismissing the originating summons. The court also notes that the judge's dismissal was not inevitable and that the parties should have been heard.
Outcome
Appeal allowed, order set aside, case remitted to High Court.
Orders
- Remit the case to the High Court to be decided according to law, under order XXXVI rule 10, or otherwise, as the case may be.
Authorities cited
Legislation (2)
- Married Women's Property Act, 1882
- Evidence Act, Cap 80
Cases cited (5)
- Re Harrison's Settlement [1955] 1 All ER
- Raichand Lakamshi v Assanand [1957] EA 82
- Kenya Commercial Bank v James Osebe CA 60/82
- Kibutiri v Kibutiri CA 30/82
- Karanja v Karanja [1976] KLR
Loading judgment…