[2022] KEHC 613 (KLR)
The court held that it was unable to prepare judgment on the appeal because the original trial records from Kakamega CMCCC No. 226 of 2017 had not been availed, as required by Order 42 Rule 13(4) of the Civil Procedure Rules. The absence of the trial record is a procedural bar to the determination of the appeal, and...
Source-derived case information.
- Citation
- [2022] KEHC 613 (KLR)
- Parties
- Appellant: Eshitemi Shikuku Donnie; Appellant: Nahashon Tindi Musotsi; Respondent: Pamela Vomoji Ishuga
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E10 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Availability of Trial Record Prior to Judgment
- Outcome
- Judgment on the appeal deferred pending availability of the original trial records.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Record Availability, Order 42 Rule 13, Judgment Preparation, Trial Record Transmission
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eshitemi Shikuku Donnie
Appellant
Nahashon Tindi Musotsi
Appellant
Pamela Vomoji Ishuga
Respondent
Procedural Posture
Civil Appeal / Ruling on Availability of Trial Record Prior to Judgment
Legal Issues
- 1 Whether the court can proceed to prepare judgment in the absence of the original trial records as required by Order 42 Rule 13(4) of the Civil Procedure Rules.
Ratio Decidendi
The court held that it was unable to prepare judgment on the appeal because the original trial records from Kakamega CMCCC No. 226 of 2017 had not been availed, as required by Order 42 Rule 13(4) of the Civil Procedure Rules. The absence of the trial record is a procedural bar to the determination of the appeal, and the court must first ensure compliance with the rule before proceeding. Accordingly, the Deputy Registrar was directed to call for the records, and the matter was to be mentioned thereafter to confirm compliance.
Court Disposition
Judgment on the appeal deferred pending availability of the original trial records.
Orders
- The Deputy Registrar shall call for the original trial records in Kakamega CMCCC No. 226 of 2017.
- The matter shall be mentioned thereafter to confirm compliance.
Full Case Text
Judgment text and source record
20 paragraphs
Donnie & another v Ishuga (Civil Appeal E10 of 2020) [2022] KEHC 613 (KLR) (10 June 2022) (Ruling)
Neutral citation: [2022] KEHC 613 (KLR)
Republic of Kenya
In the High Court at Kakamega
Civil Appeal E10 of 2020
WM Musyoka, J
June 10, 2022
Between
Eshitemi Shikuku Donnie
1st Appellant
Nahashon Tindi Musotsi
2nd Appellant
and
Pamela Vomoji Ishuga
Respondent
(From judgment and decree of Hon. Hazel Wandere, Senior Principal Magistrate, in Kakamega CMCCC No. 226 of 2017, of 23rd September 2020)
Ruling
1. The original trial records in Kakamega CMCCC No. 226 of 2017 have not been availed, contrary to Order 42 Rule 13(4) of the Civil Procedure Rules. Am unable to prepare judgment on the appeal in the circumstances.
2. The Deputy Registrar shall call for the records. The matter shall be mentioned thereafter to confirm compliance.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA ON THIS 10TH DAY OF JUNE 2022WM MUSYOKAJUDGEErick Zalo, Court AssistantMr. Atudo, instructed by Mbugwa, Atudo & Macharia, Advocates, for the appellants.Mrs. Muleshe, instructed by Phoebe Munihu Muleshe & Co., Advocates, for the respondent.