[2020] KEHC 9652 (KLR)
The court held that it is not possible to write and deliver a judgment in the absence of the original lower court file and a complete record of appeal. The record of appeal was found to be incomplete as it lacked essential pleadings and documents from the lower court, such as the petition for grant of...
Source-derived case information.
- Citation
- [2020] KEHC 9652 (KLR)
- Parties
- Appellant: John Gitau Wainaina; Respondent: Joseph Gitaiga Wainaina; Interested Party: Anthony Macharia Karioki Gathata
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 8 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Inability to Deliver Judgment Due to Missing Lower Court File
- Outcome
- Judgment deferred; directions issued for filing supplementary record or availing original file.
- Judges
- JO Nyarangi
- Legal Topics
- Appeal Record Completeness, Missing Court File, Probate and Administration, Judgment Deferment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Gitau Wainaina
Appellant
Joseph Gitaiga Wainaina
Respondent
Anthony Macharia Karioki Gathata
Interested Party
Procedural Posture
Civil Appeal / Ruling on Inability to Deliver Judgment Due to Missing Lower Court File
Legal Issues
- 1 Whether the High Court can deliver judgment in the absence of the original lower court file and a complete record of appeal.
- 2 What steps should be taken when the record of appeal is incomplete and the original file is missing.
Ratio Decidendi
The court held that it is not possible to write and deliver a judgment in the absence of the original lower court file and a complete record of appeal. The record of appeal was found to be incomplete as it lacked essential pleadings and documents from the lower court, such as the petition for grant of representation, supporting documents, application for confirmation, protest, and replies. The court deferred the writing of the judgment until the original file is availed or, in the alternative, directed the appellant's advocate to file a supplementary record of appeal containing the necessary and relevant pleadings within 30 days. This approach ensures that the appellate court has all...
Court Disposition
Judgment deferred; directions issued for filing supplementary record or availing original file.
Orders
- Writing of the pending judgment is deferred until the original lower court file is availed or a supplementary record of appeal is filed within 30 days.
- Mention scheduled for 19th May, 2020 for further directions.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
FAMILY DIVISION
CIVIL APPEAL NO. 8 OF 2011
JOHN GITAU WAINAINA .....................................................................APPELLANT
V E R S U S
JOSEPH GITAIGA WAINAINA ..........................................................RESPONDENT
ANTHONY MACHARIA KARIOKI GATHATA ..................INTERESTED PARTY
RULING
1. The appeal herein emanates from the decision (Judgement) delivered on 16th February 2011 by the Thika Chief Magistrate’s Court. A memorandum of Appeal against the whole decision was filed on 5th February 2020 and thereafter the appeal fixed for hearing. Consequently, parties agreed to dispose of the matter by way of written submissions. The court then directed for the Deputy Registrar to call for the original file from Thika Law Courts. On 8th October 2019, both counsel confirmed filing written submissions and without highlighting on the same asked the court to deliver Judgment based on the written submissions.
2. The court then fixed the case for Judgment on 3rd December 2019. Due to pressure of work, Judgment could not be delivered. It was then rescheduled to 19th December 2019. On that day, the court realised that the original file from Thika Law Courts was not available although indicated from the file record that it was forwarded to the Deputy Registrar Family Division. The court could not proceed to write its Judgment without the original file. I therefore directed for the file to be traced. Since December Vacation had started, the matter was fixed for mention on 4th February 2020.
3. Unfortunately, on 4th February 2020 I was on leave and for that reason, the original court file was not available for extension of the orders. After resuming duty from leave on 24th February 2020, I enquired whether the file was available. I was informed that it was misplaced and the registry staff needed more time to look for it. Unfortunately, I fell sick from 27th February 2020, got admitted in hospital on 1st March 2020 up to 8th March 2020 and after discharge, courts were suspended from normal operations due to Corona Virus.
4. While on duty during the week of 23rd to 27th March 2020, I tried to get the original file but in vain. Upon perusing the record of appeal, I realised that the same is incomplete as it only contains the typed lower court proceedings, court Judgment and Certificate of Confirmed Grant.
5. Ideally, the record of appeal does not have lower court pleadings like the Petition for grant of representation and its supporting documents, application for confirmation, protest and the reply thereof plus other supporting documents etc.
6. In the absence of the original lower court record and considering that the record of appeal is incomplete, I will not write a Judgment without the necessary pleadings before the lower court being on record. For those reasons, I will defer writing the pending Judgement until the original file is availed and on the extreme circumstances have the Advocate for the appellant file a supplementary record of appeal so as to file the necessary and relevant pleadings filed and relied on before the lower court within 30 days from the date of delivery of this Ruling.
7. Mention on 19th May, 2020 for further directions.
DATED, DELIVERED and SIGNED in at NAIROBI this 29th day of April 2020.
J. N. ONYIEGO
JUDGE