[2004] KEHC 2277 (KLR)
The court found that the directions purportedly given by the Deputy Registrar under Order XLI rule 8B(1) of the Civil Procedure Rules were incompetent, as the law requires such directions to be given by a Judge in chambers. Consequently, there were no valid directions to enable the appeal to be properly listed for...
Source-derived case information.
- Citation
- [2004] KEHC 2277 (KLR)
- Parties
- Appellant: Calisto Wandanje; Respondent: Katherima Auma Maluku
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- ? 23 of ??
- Procedural Posture
- Civil Appeal / Ruling on Procedural Competence of Appeal
- Outcome
- Directions given by the Deputy Registrar set aside; proceedings and submissions of 2nd March 2004 set aside; parties directed to take competent directions before a Judge.
- Legal Topics
- Appeal Directions, Jurisdiction of Registrar, Procedural Irregularity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Calisto Wandanje
Appellant
Katherima Auma Maluku
Respondent
Procedural Posture
Civil Appeal / Ruling on Procedural Competence of Appeal
Legal Issues
- 1 Whether the Deputy Registrar had jurisdiction to give directions under Order XLI rule 8B(1) of the Civil Procedure Rules.
- 2 Whether the directions given by the Deputy Registrar were competent to enable the appeal to be set down for hearing.
- 3 Whether proceedings and submissions taken in the absence of competent directions should be set aside.
Ratio Decidendi
The court found that the directions purportedly given by the Deputy Registrar under Order XLI rule 8B(1) of the Civil Procedure Rules were incompetent, as the law requires such directions to be given by a Judge in chambers. Consequently, there were no valid directions to enable the appeal to be properly listed for hearing. The proceedings and submissions taken in the absence of competent directions were therefore premature and must be set aside. The court exercised its inherent power to set aside both the directions and the subsequent proceedings, and directed the parties to take proper directions as prescribed by law before the matter can proceed.
Court Disposition
Directions given by the Deputy Registrar set aside; proceedings and submissions of 2nd March 2004 set aside; parties directed to take competent directions before a Judge.
Orders
- The directions given by the Deputy Registrar on 13th January 2003 are set aside.
- The proceedings and submissions of 2nd March 2004 are set aside.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUSIA
CIVIL APPEAL NO. 23 OF 2000
(From Original SRM CC 444 of 1997 before S. Omwega RM)
CALISTO WANDANJE ………… APPELLANT VS KATHERIMA AUMA MALUKU …….. RESPONDENT
R U L I N G
This appeal came up for hearing on the premise that all the preliminary procedures have been complied with under the provisions of Order XLI of the Civil Procedure rules. Being vigilant I had to satisfy myself that I was dealing with a competent appeal by perusing the record of appeal. The record discloses that directions in this appeal were taken on 13th January 2003 pursuant to the provisions of Order XLI rule 8 B (1) of the Civil Procedure rules before the Deputy Registrar of this court.
The Deputy Registrar obviously did not have jurisdiction to give directions under the law. The provisions of Order XLI rule 8 B (1) provides
On notice to the parties delivered not less than twenty -one days after the date of service of the memorandum of appeal the registrar shall list the appeal for the giving of directions by a Judge in chambers.”
Consequently there were no competent directions to enable this appeal to be listed for hearing. I hereby exercise my inherent power to set aside the directions given by the Deputy Registrar on 13. 1.2003 ex-debito Justitae. Thus in the absence of directions, then this appeal cannot be said to ready for hearing. Hence the proceedings or submissions of 2nd March 2004 were prematurely taken. I will set aside the proceedings and direct the parties to take competent directions as prescribed by law.
DATED AND DELIVERED THIS 4th DAY OF June 2004
J.K. SERGONJUDGE