[2020] KEHC 5082 (KLR)
The court found that there was no evidence on record to show that the respondent was served with the supplementary record of appeal and the appellant's written submissions, as required by previous court directions. The record of appeal and submissions were filed out of time, and there was no proof of service on the...
Source-derived case information.
- Citation
- [2020] KEHC 5082 (KLR)
- Parties
- Appellant: David Machanga Gateri; Respondent: Phinears Njagi Munyi
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 22 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Service and Submissions Prior to Judgment
- Outcome
- Matter stood over for mention to confirm service and set a fresh judgment date.
- Judges
- LW Gitari
- Legal Topics
- Service of Documents, Filing of Submissions, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Machanga Gateri
Appellant
Phinears Njagi Munyi
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Service and Submissions Prior to Judgment
Legal Issues
- 1 Whether the respondent was properly served with the supplementary record of appeal and the appellant's written submissions.
- 2 Whether judgment can be delivered in the absence of proof of service and respondent's submissions.
Ratio Decidendi
The court found that there was no evidence on record to show that the respondent was served with the supplementary record of appeal and the appellant's written submissions, as required by previous court directions. The record of appeal and submissions were filed out of time, and there was no proof of service on the respondent. Delivering judgment without ensuring the respondent had been served and given an opportunity to submit would be unfair and contrary to the principles of natural justice. The court therefore directed that the matter be mentioned in the presence of both parties to confirm service and to set a fresh date for judgment.
Court Disposition
Matter stood over for mention to confirm service and set a fresh judgment date.
Orders
- The matter to be listed for mention in the presence of both parties.
- The respondent to confirm service of the supplementary record of appeal and submissions.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
HIGH COURT CIVIL APPEAL NO. 22 OF 2018
DAVID MACHANGA GATERI.......................................APPELLANT
VERSUS
PHINEARS NJAGI MUNYI........................................RESPONDENT
(having been aggrieved and dissatisfied by the judgment of S.M.S. Soita CM in the
CivilSuit No. 49 of 2017 delivered on 21st September, 2017 the appellant wishes
to appeal against the whole ruling and/or order and puts forth the following grounds)
BETWEEN
DAVID MACHANGA GATERI.....................................APPLICANT
VERSUS
PHINEARS NJAGI MUNYI......................................RESPONDENT
RULING
1. This matter was coming for Judgment however, upon perusal of the record I realize that there is no evidence on record to show that the respondent was served with the supplementary record of appeal and the appellants written submissions, and this court had given directions that this appeal be disposed of by way of written submissions.
2. On 1st of July, 2019 the court had ordered that the respondent files the record of appeal within 14 days and serve on the respondent within 14 days together with the submissions.
3. This record of appeal was filed on 11th November, 2019 and the submissions were also filed on 11th November, 2019 which clearly shows that they were not filed within time. The order for giving a date for judgment was pre-mature as there was no proof that the respondent was served within time.
4. It would be unfair to give Judgment without the benefit of the submissions by the respondent, and without proof that he was served with the submissions and the supplementary record of appeal.
5. I therefore, direct that the matter be listed for mention in the presence of both parties for the respondent to confirm that he was served with the supplementary record of appeal and the submissions and a fresh date for judgment be taken.
Date, signed at Kerugoya this 29th day of May 2020
L.W. GITARI
JUDGE