[2001] KECA 153 (KLR)
The Court of Appeal held that the judgment delivered by the Senior Resident Magistrate was a nullity as it was in breach of Order XX rule 2(2) and not authorised by Order 48 of the Civil Procedure Rules. Both parties agreed that the magistrate lacked jurisdiction to deliver the judgment in question. Consequently,...
Source-derived case information.
- Citation
- [2001] KECA 153 (KLR)
- Parties
- Appellant: Herbert Asava; Appellant: Jacob Masinde Neyole; Appellant: Hezron Atsaya; Appellant: Ezekiel Wanyonyi; Appellant: Bethwell Alenga; Appellant: Japheth Nagaya; Appellant: Moses Mulele; Appellant: Hesbon O. Wendo; Appellant: Victor Shitoshe; Appellant: Tom Agweyu; Appellant: Alice Masilwa; Respondent: Timothy Bilindi; Respondent: Alexander Mudeki Masika; Respondent: Jestimore Webi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 196 of ??
- Procedural Posture
- Civil Appeal / Appeal From Ruling and Order of the High Court at Busia
- Outcome
- appeal allowed
- Judges
- EO O'Kubasu
- Legal Topics
- Judgment Nullity, Jurisdiction of Magistrate, Order Xx Rule 2, Order 48 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Herbert Asava
Appellant
Jacob Masinde Neyole
Appellant
Hezron Atsaya
Appellant
Ezekiel Wanyonyi
Appellant
Bethwell Alenga
Appellant
Japheth Nagaya
Appellant
Moses Mulele
Appellant
Hesbon O. Wendo
Appellant
Victor Shitoshe
Appellant
Tom Agweyu
Appellant
Alice Masilwa
Appellant
Timothy Bilindi
Respondent
Alexander Mudeki Masika
Respondent
Jestimore Webi
Respondent
Procedural Posture
Civil Appeal / Appeal From Ruling and Order of the High Court at Busia
Legal Issues
- 1 Whether the judgment delivered by a Senior Resident Magistrate was a nullity due to lack of jurisdiction under the Civil Procedure Rules.
- 2 Whether Order XX rule 2(2) and Order 48 of the Civil Procedure Rules were breached.
Ratio Decidendi
The Court of Appeal held that the judgment delivered by the Senior Resident Magistrate was a nullity as it was in breach of Order XX rule 2(2) and not authorised by Order 48 of the Civil Procedure Rules. Both parties agreed that the magistrate lacked jurisdiction to deliver the judgment in question. Consequently, the appeal was allowed, the impugned judgment was set aside, and the application in the superior court was dismissed with costs. The court emphasized the importance of adherence to procedural rules regarding the delivery of judgments and the jurisdiction of judicial officers.
Court Disposition
appeal allowed
Orders
- The appeal is allowed with costs.
- The judgment appealed from is set aside.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KISUMU (CORAM: TUNOI, LAKHA & O'KUBASU JJA) CIVIL APPEAL NO. 196 OF 2000 BETWEEN
1. HERBERT ASAVA ) 2. JACOB MASINDE NEYOLE ) 3. HEZRON ATSAYA ) 4. EZEKIEL WANYONYI ) 5. BETHWELL ALENGA )...................... APPELLANTS 6. JAPHETH NAGAYA ) 7. MOSES MULELE ) 8. HESBON O. WENDO ) 9. VICTOR SHITOSHE ) 10. TOM AGWEYU ) 11. ALICE MASILWA ) AND 1. TIMOTHY BILINDI ) 2. ALEXANDER MUDEKI MASIKA ) 3. JESTIMORE WEBI )...................... RESPONDENT(JEREMISA H LUSWETI )
(Appeal from the ruling and order of the High Court of Kenya at Busia (Mr. Justice G.P. Mbito) )dated 29th March, 2000 and delivered on 3rd May, 2000 in H.C.MISC.APPL. NO. 17 OF 1998) ******************\ JUDGMENT OF THE COURT
Mr. Wanga for the appellants has contended that the judgment appealed against is a nullity having been delivered by a Senior Resident Magistrate in breach of Order xx r.2(2) oPfr octehdeu rCei viRlules and not authorised by the provisions of Order 48 of the Civil Procedure Rules. Mr. Anzia for respondents agreeAsc.cordingly the appeal is allowed with costs, the judgment appealed from is set aside and the application in the superior court dated 19th March, 1999 is disimissed with costs.
Made at Kisumu this 20th day of November, 2001.
P.K. TUNOI
JUDGE OF APPEAL
A.A. LAKHA
JUDGE OF APPEAL
E.O. O'KUBASU
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR