[2023] KEHC 3480 (KLR)
The court found that the record of appeal filed by the appellants was incomplete because it omitted the oral evidence of the respondent recorded on May 21, 2019. The handwritten notes containing this evidence, found at pages 5 to 9 of the original trial court record, were not legible to the presiding judge. As a...
Source-derived case information.
- Citation
- [2023] KEHC 3480 (KLR)
- Parties
- Appellant: Shitemi Shikuku Donnie; Appellant: Nahashon Tindi Musotsi; Respondent: Wilfred Alusa (suing as legal representative of the estate of Pamela Vomoji Ishuga, deceased)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E10 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Completeness of Record of Appeal
- Outcome
- Appellants directed to file a complete record of appeal; judgment deferred.
- Judges
- WM Musyoka
- Legal Topics
- Record of Appeal, Appellate Practice, Incomplete Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Shitemi Shikuku Donnie
Appellant
Nahashon Tindi Musotsi
Appellant
Wilfred Alusa (suing as legal representative of the estate of Pamela Vomoji Ishuga, deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Completeness of Record of Appeal
Legal Issues
- 1 Whether the record of appeal filed by the appellants is complete and sufficient for the determination of the appeal.
- 2 Whether the omission of oral evidence from the record of appeal affects the court's ability to proceed with the appeal.
Ratio Decidendi
The court found that the record of appeal filed by the appellants was incomplete because it omitted the oral evidence of the respondent recorded on May 21, 2019. The handwritten notes containing this evidence, found at pages 5 to 9 of the original trial court record, were not legible to the presiding judge. As a result, the court determined that it could not proceed to hear and determine the appeal on the basis of an incomplete record. The appellants were therefore directed to file a complete record of appeal, after which the matter would be set down for judgment by the judge's successors at Kakamega.
Court Disposition
Appellants directed to file a complete record of appeal; judgment deferred.
Orders
- Appellants shall file a complete record of appeal.
- Judgment to be delivered by successors at Kakamega after filing of complete record.
Full Case Text
Judgment text and source record
21 paragraphs
Donnie & another v Alusa (suing as legal representative of the estate of Pamela Vomoji Ishuga (deceased)) (Civil Appeal E10 of 2020) [2023] KEHC 3480 (KLR) (28 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3480 (KLR)
Republic of Kenya
In the High Court at Kakamega
Civil Appeal E10 of 2020
WM Musyoka, J
April 28, 2023
Between
Shitemi Shikuku Donnie
1st Appellant
Nahashon Tindi Musotsi
2nd Appellant
and
Wilfred Alusa
Respondent
suing as legal representative of the estate of Pamela Vomoji Ishuga (deceased)
(Appeal from judgment and decree of Hon. Hazel Wandere, Principal Magistrate, PM, in Kakamega CMCCC No. 226 of 2017, of 23rd September 2020)
Ruling
1. The record of appeal is incomplete, as it omits the oral evidence that was recorded on May 21, 2019, from the respondent, appearing at pages 5, 6, 7, 8 and 9 of the original (handwritten) trial court records. I am unable to read the handwritten notes made by Hon Wandere, PM.
2. Let the appellants file a complete record of appeal. Judgment shall thereafter be done by my successors at Kakamega.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 28TH.DAY OF APRIL 2023W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMr. Atudo, instructed by Mbugwa, Atudo & Macharia, Advocates, for the appellants.Mrs. Muleshe, instructed by Phoebe Munihu Muleshe & Company, Advocates, for the respondent.