[2023] KEHC 3765 (KLR)
The High Court cannot proceed to hear and determine an appeal from a subordinate court unless the original trial court record is availed. This requirement is grounded in Order 42 of the Civil Procedure Rules, which mandates that the original record be before the appellate court, and in Article 165(6)(7) of the...
Source-derived case information.
- Citation
- [2023] KEHC 3765 (KLR)
- Parties
- Appellant: Winnie Odhiambo Juma (Suing as the administrator of the Estate of Lewis Eshialale Mukhonja - Deceased); Respondent: KCB Bank Limited
- Court
- High Court
- Court Station
- High Court at Vihiga
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E010 of 2022
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Compliance With Procedural Requirements Before Hearing Appeal
- Outcome
- Matter stood over for compliance with procedural requirements; appeal not heard on merits.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Record Requirements, Supervisory Jurisdiction, Original Trial Record, Order 42 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winnie Odhiambo Juma (Suing as the administrator of the Estate of Lewis Eshialale Mukhonja - Deceased)
Appellant
KCB Bank Limited
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Compliance With Procedural Requirements Before Hearing Appeal
Legal Issues
- 1 Whether the High Court can proceed to hear an appeal without the original trial court record being availed.
- 2 Whether compliance with Order 42 of the Civil Procedure Rules and Article 165(6)(7) of the Constitution is mandatory before the appeal is considered.
Ratio Decidendi
The High Court cannot proceed to hear and determine an appeal from a subordinate court unless the original trial court record is availed. This requirement is grounded in Order 42 of the Civil Procedure Rules, which mandates that the original record be before the appellate court, and in Article 165(6)(7) of the Constitution, which vests the High Court with supervisory jurisdiction over subordinate courts. The court emphasized that the practice of relying solely on a record of appeal is insufficient, as the High Court's mandate includes auditing the subordinate court's proceedings for correctness, regularity, and propriety. Without the original record, the court cannot properly exercise its...
Court Disposition
Matter stood over for compliance with procedural requirements; appeal not heard on merits.
Orders
- Deputy Registrar to ensure compliance with Order 42 of the Civil Procedure Rules and Article 165(6)(7) of the Constitution before the file is placed before the Judge for judgment.
- Matter to be handled hereafter at the High Court of Kenya at Vihiga.
Full Case Text
Judgment text and source record
21 paragraphs
Juma (Suing as the administrator of the Estate of Lewis Eshialale Mukhonja - Deceased) v KCB Bank Limited (Civil Appeal E010 of 2022) [2023] KEHC 3765 (KLR) (28 April 2023) (Ruling)
Neutral citation: [2023] KEHC 3765 (KLR)
Republic of Kenya
In the High Court at Vihiga
Civil Appeal E010 of 2022
WM Musyoka, J
April 28, 2023
Between
Winnie Odhiambo Juma (Suing as the administrator of the Estate of Lewis Eshialale Mukhonja - Deceased)
Appellant
and
Kcb Bank Limited
Respondent
(Appeal from judgment and decree by Hon. MM Gituma, Resident Magistrate, RM, in Vihiga PMCCC No. 111 of 2018, of 27st April 2022)
Ruling
1. Order 42 of the Civil Procedure Rules requires that the original trial record be made available, before the appeal is considered by the Judge. That requires that the original trial court file be made available. The practice of filing a record of appeal is borrowed from the Court of Appeal, yet the mandate of the High Court, as an appellate court, is broader.
2. The reason for requiring the availing of the original trial record lies in Article 165(6)(7) of the Constitution. The High Court exercises a supervisory jurisdiction over subordinate courts, and has a duty to look at the records of proceedings conducted by the subordinate courts. It should not be just about the appeal, and the issues raised in it, it is also about auditing the proceedings for correctness, regularity and propriety.
3. The jurisdiction to supervise is exercisable through appeal, revision, Judicial Review or constitutional petition. The High Court even has mandate to suo moto, in the absence of any form of proceedings being initiated before it, to just call for the records to be placed before it. The objective is to ensure fair administration of justice; or, simply put, to satisfy itself that the subordinate court is doing or did the right thing, and that cannot be done properly and effectively without the original records.
4. In this appeal, the original trial court records have not been made available. So, Order 42 has not been complied with, and this court would not be able to exercise its constitutional mandate to supervise the subject subordinate court, by examining the original records of its proceedings as required by Article 165(6)(7) of theConstitution.
5. Let the Deputy Registrar bring the matter into compliance with Order 42 and Article 165(6)(7) before the file is placed before the Judge for writing the judgment due. The matter to be handled hereafter at the High Court of Kenya at Vihiga.
RULING IS DELIVERED, DATED AND SIGNED IN OPEN COURT AT KAKAMEGA THIS 28TH DAY OF APRIL 2023W MUSYOKAJUDGEMr. Erick Zalo, Court Assistant.AppearancesMr. Anyumba, instructed by Anyumba & Associates, Advocates for the appellant.Mr. Wangoda, instructed by LG Menezes & Company, Advocates for the respondent.