[2006] KEHC 2068 (KLR)
The court determined that it would not render a final judgment until parties were given proper directions and an opportunity to address the findings made by the lower court upon remittal. The judge recognized the special circumstances of the appeal, including the partial hearing and the need to ensure procedural...
Source-derived case information.
- Citation
- [2006] KEHC 2068 (KLR)
- Parties
- Appellant: Charles Kimaita Mwithimbu; Respondent: Joseph R.C. Mwirigi Muguna
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 36 of 2002
- Procedural Posture
- Civil Appeal / Directions Following Remittal for Further Evidence
- Outcome
- Final judgment deferred; directions to be given to parties.
- Judges
- I Lenaola
- Legal Topics
- Remittal to Lower Court, Admissibility of Evidence, Sale Agreement Dispute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kimaita Mwithimbu
Appellant
Joseph R.C. Mwirigi Muguna
Respondent
Procedural Posture
Civil Appeal / Directions Following Remittal for Further Evidence
Legal Issues
- 1 Whether the signatures on the sale agreement and payment acknowledgment receipts were those of the plaintiff.
- 2 Whether the appellant was denied an opportunity to make submissions in the lower court.
- 3 Whether a final judgment should be entered or further submissions allowed after remittal.
Ratio Decidendi
The court determined that it would not render a final judgment until parties were given proper directions and an opportunity to address the findings made by the lower court upon remittal. The judge recognized the special circumstances of the appeal, including the partial hearing and the need to ensure procedural fairness, particularly in light of the appellant's claim of not having had an opportunity to make submissions in the lower court. The court thus deferred final judgment and ordered that directions be given to the parties to determine whether further submissions should be made or a final judgment entered based on the lower court's findings.
Court Disposition
Final judgment deferred; directions to be given to parties.
Orders
- No final judgment is given at this stage.
- Proper directions to be given to the parties by the court at the end of this ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MERU
Civil Appeal 36 of 2002
CHARLES KIMAITA MWITHIMBU……………………....…………………APPELLANT?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" /
V E R S U S
JOSEPH R.C. MWIRIGI MUGUNA……………………..………..……….RESPONDENT
R U L I N G
1. On 3. 7.2003 Kasanga Mulwa J. in a Judgment in this matter said this at the end of the said judgment:
“I will sent (sic) the case back to the S.P.M. for hearing further evidence on whether the signatures appearing in the sale agreement dated 14. 9.1979 and those appearing in the other documents acknowledging the receipts [of] the various amounts belonging to the appellant.The learned magistrate will send his finding to this court.”
2. Pursuant to this direction, J.R. Karanja Esq. Chief Magistrate heard evidence on the one point raised by the learned Judge and concluded as follows (on 14. 5.2006);
“The ultimate findings of this court in terms of the High Court Order made on the 3rd July, 2003 is that most likely than not the disputed documents i.e. the sale agreement (D.Exh.A) and the payment acknowledgements receipts (D.Exh.B) were signed by the plaintiff.His contention that he did not sign the said document and was incapable of doing so due to illness of the mind was undoubtedly intended to conceal the actual truth and defeat the course of justice.”
3. The dispute thereafter reverted back to the High Court for determination of the Appeal.At first instance, I thought I should proceed and finalize the judgment-dated 3. 7.2003 by Mulwa J.However, on retiring to write what I thought should have been a Judgment and having perused the record of hearing of the Appeal, it occurred to me that what I was required to do was to give directions on how to proceed and that parties would wish to agree on two things;
i)whether a final judgment should now be written on the matter taking into account the findings of the lower court.
ii)Whether the parties would like to make further submissions on the one point referred back to the lower court and thereafter a judgment can be given and bring the Appeal to an end.
4. I say this because one of the issues raised by the Appellant in his memorandum of Appeal is that he had no opportunity to make submissions in the lower court and that court was denied the opportunity to see the case as it should have been.I do not wish to give the same impression whether that in fact was what happened or not.I did not hear the Appeal and parties may wish that whatever directions are given those directions do meet their approval in the special nature of the circumstances of this Appeal it being in a way partly heard and a partial judgment given.
5. In the event then, I will not give a final judgment in this matter until proper directions are given to the parties by court at the end of this Ruling.
6. Orders accordingly.
DATED SIGNED AND DELIVERED AT MERU THIS 19THDAY OF JUNE 2006
ISAAC LENAOLA,
J U D G E
In the Presence of
The Appellant in person
The Respondent in person
ISAACLENAOLA
JUDGE.