[2008] KEHC 2320 (KLR)
The court found that the appellant had expressly stated he was ready to proceed with his case and had no witnesses to call, thus there was no denial of the right to call witnesses. The record showed that the arbitration process was conducted and the elders' award was received, but the trial court was justified in...
Source-derived case information.
- Citation
- [2008] KEHC 2320 (KLR)
- Parties
- Appellant: Julius Njuki Machicho; Respondent: Harrison Njoka
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 2002
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs to respondent
- Legal Topics
- Appeals From Magistrates Courts, Dowry Disputes, Customary Law Arbitration, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Njuki Machicho
Appellant
Harrison Njoka
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in denying the appellant the right to call witnesses.
- 2 Whether Order 45 Rule 10A of the Civil Procedure Rules was complied with regarding arbitration.
- 3 Whether the trial court properly set aside the elders' award and invoked inherent powers to quash proceedings deemed repugnant to justice or religious beliefs.
Ratio Decidendi
The court found that the appellant had expressly stated he was ready to proceed with his case and had no witnesses to call, thus there was no denial of the right to call witnesses. The record showed that the arbitration process was conducted and the elders' award was received, but the trial court was justified in setting aside the award as the process was deemed repugnant to justice and religious beliefs. The court further held that any omission regarding the dating of the judgment was a clerical error curable under Section 99 of the Civil Procedure Code. Consequently, all grounds of appeal lacked merit and the appeal was dismissed with costs to the respondent.
Court Disposition
appeal dismissed with costs to respondent
Orders
- The appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 62 of 2002
JULIUS NJUKI MACHICHO…………...………………..APPELLANT
VERSUS
HARRISON NJOKA……………………………………RESPONDENT
JUDGMENT
This appeal arises out of Judgment and order of Hon. Resident Magistrate Siakago in Civil Case No. 10 of 2001where Appellant was plaintiff and Respondent was Defendant. The plaintiff’s cause of action in the lower court was in custody law for balance of dowry of this sister married to Defendant being six cows and 5 goats. This claim was denied by the Respondent the dispute was placed before the elders for hearing at the request of Defendant. However the decision of elders was set aside and the Resident Magistrate heard the case himself and dismissed the plaintiff’s case. The grounds of appeal are:
1. That the Trial Magistrate mis interpreted Appellants answer as to whether he had witnesses to call or not
2. That the Trial Magistrate erred in denying the appellant the right to call witnesses.
On these two grounds the record shows that when the Trial Magistrate ordered a full hearing before him the Appellant said “am ready to proceed with my case and no witness to call”
Thereafter Plaintiff/Appellant gave his evidence and closed his case after he was cross-examined by the Defendant/Respondent. I therefore do not find any support of the grounds (1) and (2) the same are dismissed.
On ground 3 that Order 45 Rule 10 A was not complied with the record shows that on 2/10/2001 the order to send the matter to arbitration was made and mention fixed on 2/11/2001. On 2/11/2001 the parties appeared for mention.
The Appellant reported to court what the elders had said. The Defendant /Respondent also addressed the court. In fact the elders award had been received in court on 1/11/2001 and it shows that the Respondent failed to comply with custom of Mbeere in the conduct of arbitration and he failed to attend before elders and therefore the elders gave award for plaintiff as any court or tribunal would do. All the same Siakago Court proceeded to set aside the award and at the same time the Appellant was ready to proceed with his case and did not request for 30 days Notice. This ground has no merit.
Regarding ground 4 and 5 it was the Respondent who raised the issue of being required to take a month which the court regarded……………………….. and repugnant. It was in order for the court to invoke inherent powers to quash such proceedings. The court was entitled to take objection on such repugnant practices which the Respondent said were against his religious beliefs. These grounds are therefore without merit.
Regarding ground (6) that the Judgment was not dated the record shows that the Judgment was ordered to be delivered on 14/11/2001. That is the day it was delivered and the decree shows that date. It is a ship that can be corrected under Section 99 Civil Procedure Code.
Upon considering the grounds of Appeal as stated above this appeal is dismissed with costs to Respondent.
Dated this 5th May, 2008.
J. N. KHAMINWA
JUDGE
5/5/2008
Khaminwa –Judge
Njue –Clerk
Mr. Muraguri
N/A P. N Mugo
Read in open court.
J. N. KHAMINWA
JUDGE