[2015] KEHC 3879 (KLR)
The High Court is unable to prepare and deliver judgment in the appeal because the original record from the lower court (Milimani Commercial Court CMCDC No. 144 of 2008) has not been furnished. The absence of the lower court record precludes the appellate court from properly considering the merits of the appeal....
Source-derived case information.
- Citation
- [2015] KEHC 3879 (KLR)
- Parties
- Appellant: J W M; Respondent: D K M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 3 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Inability to Deliver Judgment Due to Missing Lower Court Record
- Outcome
- Judgment deferred; directions issued for retrieval of lower court record.
- Judges
- DN Musyoka
- Legal Topics
- Divorce Appeals, Record of Lower Court, Judicial Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J W M
Appellant
D K M
Respondent
Procedural Posture
Civil Appeal / Ruling on Inability to Deliver Judgment Due to Missing Lower Court Record
Legal Issues
- 1 Whether the High Court can deliver judgment in the absence of the original lower court record.
- 2 What procedural steps should be taken when the lower court record is unavailable.
Ratio Decidendi
The High Court is unable to prepare and deliver judgment in the appeal because the original record from the lower court (Milimani Commercial Court CMCDC No. 144 of 2008) has not been furnished. The absence of the lower court record precludes the appellate court from properly considering the merits of the appeal. Consequently, the court directs that the Deputy Registrar call for the original record and that the matter be mentioned for further directions once the record is available.
Court Disposition
Judgment deferred; directions issued for retrieval of lower court record.
Orders
- The Deputy Registrar is directed to call for the original record from Milimani Commercial Court CMCDC No. 144 of 2008.
- The Chief Magistrate in charge of the Milimani Commercial Courts to be furnished with a copy of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 3 OF 2013
J W M ………….…….......................………………..APPELLANT
VERSUS
D K M …………………………………….…...……RESPONDENT
(Being an appeal from the judgement and decree of Hon. Cheruto Kipkorir delivered on 21st day of December 2012 in Chief Magistrates court at Nairobi in Divorce Cause No. 144 of 2008)
RULING
The appeal herein was argued before me on 23rd October 2014 and I reserved the judgment to a later date.
I have not been furnished with the original record of the lower court in Milimani Commercial Court CMCDC No. 144 of 2008. I am unable to prepare the judgment without the original record.
The matter shall be mentioned on a date to be given at the delivery of this ruling for further directions.
The Chief Magistrate in charge of the Milimani Commercial Courts, Chief Magistrate’s Court to be furnished with a copy of this ruling and the Deputy Registrar is hereby directed to call for the original record referred to above.
DATED, SIGNED and DELIVERED at NAIROBI this 3RD DAY OF JULY, 2015.
W. MUSYOKA
JUDGE
In the presence of Mr. Kire advocate for the appellant.
In the presence of ……………………. advocate for the respondents.