[2020] KEHC 2830 (KLR)
The court found that although the Memorandum of appeal was not annexed to the supplementary record as required, resulting in the striking out of the appeal, it was within the court's discretion to grant the appellant leave to rectify the omission. The court exercised this discretion in favor of the appellant,...
Source-derived case information.
- Citation
- [2020] KEHC 2830 (KLR)
- Parties
- Appellant: Fredrick Odongo Otsieno; Respondent: Al-Husnanin Motors Limited
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 22 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Leave to File Supplementary Record of Appeal
- Outcome
- leave granted to file and serve supplementary record of appeal
- Judges
- RE Aburili
- Legal Topics
- Appeal Record, Supplementary Record, Leave to File, Memorandum of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Fredrick Odongo Otsieno
Appellant
Al-Husnanin Motors Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Leave to File Supplementary Record of Appeal
Legal Issues
- 1 Whether the appellant should be granted leave to file and serve a supplementary record of appeal comprising a Memorandum of appeal after the appeal was struck out for non-compliance.
Ratio Decidendi
The court found that although the Memorandum of appeal was not annexed to the supplementary record as required, resulting in the striking out of the appeal, it was within the court's discretion to grant the appellant leave to rectify the omission. The court exercised this discretion in favor of the appellant, allowing the filing and service of a supplementary record of appeal comprising the Memorandum of appeal within ten days. The decision was guided by the principle that procedural lapses should not necessarily defeat substantive justice, provided there is no evidence of prejudice or deliberate non-compliance.
Court Disposition
leave granted to file and serve supplementary record of appeal
Orders
- The appellant is granted leave to file and serve a supplementary record of appeal comprising a Memorandum of appeal within 10 days.
- The Deputy Registrar to notify the Appellant’s counsel forthwith.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
AT THE HIGH COURT OF KENYA
AT SIAYA
CIVIL APPEAL NO. 22 OF 2018
FREDRICK ODONGO OTSIENO..........................APPELLANT
VERSUS
AL-HUSNANIN MOTORS LIMITED..................RESPONDENT
(Being an Appeal arising from a Judgment of Hon. G. Adhiambo, Senior Resident Magistrate in UKWALA SRM CC No. 1 of 2010 delivered on 20th July 2018)
RULING
1. I have considered the Notice of Motion dated 2/12/2018 (ought to be 2019) and filed on 3/12/2019.
2. I have also considered the grounds thereof and the annextures being a receipt dated 12/11/2019 and supplementary record of appeal.
3. I am not persuaded that the Memorandum of appeal was annexed in the supplementary record of appeal as the record is clear that none was annexed or at all leading to striking out of the appeal on 20/12/2019.
4. I however exercise discretion and grant the appellant leave to file and serve a supplementary record of appeal comprising a Memorandum of appeal. The same shall be filed and served within 10 days of today. The Deputy Registrar to notify the Appellant’s counsel forthwith.
5. Mention on 11/2/2020 to confirm compliance and for directions on appeal.
6. The Appellant to serve the Respondent’s counsel with Notice for directions on 11/2/2020.
7. Orders accordingly.
Dated, signed and Delivered at Siaya this 20th Day of January, 2020
R.E. ABURILI
JUDGE