REPUBLIC OF KENYA

High Court at Embu

Civil Appeal 99 of 2010

(Being an appeal from the Ruling of D.A. OCHARO Resident Magistrate Wanguru 

delivered on 9^th September 2010 in Civil Case No. 150 of 2008)

JAMES MUTHII NJOGU..................................................................................APPELLANT

FRANCIS MUYA NJOGU............................................................................RESPONDENT

R U L I N G

He has also raised an issue on payment of costs. He filed a supporting affidavit. The respondent filed a replying affidavit opposing the application saying no new matters had been discovered. 

I will not delve so much into the issue of new discoveries by the Applicant. It is very clear that the reason why the appeal herein was allowed was that the appellant was denied a chance to be heard and a judgment delivered in the lower Court.

This court did not get into the arena of evaluating the evidence in order to deal with merits or otherwise of the appeal. I would therefore not wish to delve into the area of who owns which Rice holding and so on. I did not make any finding on ownership of the alleged rice holding. Had the respondent been given an opportunity to be heard, it would have clearly come out and a decision made on merit. And that being the case, I would advise the applicant to have the new fact discovered placed before the trial court for consideration.

However, on the issue of costs, I agree that the trial court is the one that erred in denying the Applicant an opportunity to be heard. I therefore review the order on costs and set it aside.

I order that each party bears his own costs of the appeal. The same order applies to this application.

DELIVERED, SIGNED AND DATED AT EMBU THIS 20^TH  DAY OF FEBRUARY 2013. 

H.I. ONG'UDI