JUDGMENT
(Appeal from an Order of the High court at Kisumu, Omolo J)
June 23, 1988, Platt JA delivered the following judgment.
This appeal raises two questions; the first is whether on an application to the High court in relation to its appellate jurisdiction, the applicant should be present in court or whether the court has any power to review the matter if the application has been heard ex parte without fault on the part of the applicant. The second question is whether this Court may entertain an appeal arising out of an application having been heard ex parte, and the application being refused.
The broad facts of the case are that the applicant, now appellant sought to appeal to the High court from orders given in the Resident Magistrate’s Court as a result of a private prosecution. The appeal was delayed and the applicant sought leave to appeal out of time. The application having been refused, the applicant appealed to this court, but was met with the provisions of Section 361(8) of t…