[2010] KECA 118 (KLR)
The court found that although the decree from the subordinate court had not been filed at the time of the appeal, the omission was not fatal. The rules under Order XLIV rule 1A of the Civil Procedure Rules provide that the judge has discretion to admit the appeal for hearing and to set a time frame for the filing of...
Source-derived case information.
- Citation
- [2010] KECA 118 (KLR)
- Parties
- Appellant: Ken Knit (K) Limited; Respondent: Ali Bakari
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Filing of Decree and Admission of Appeal
- Outcome
- Preliminary objection dismissed; appeal admitted for hearing subject to filing of certified decree within 14 days.
- Legal Topics
- Appeal Admission Requirements, Filing of Decree, Directions Before Hearing, Preliminary Objection, Timeliness of Objection
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ken Knit (K) Limited
Appellant
Ali Bakari
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Filing of Decree and Admission of Appeal
Legal Issues
- 1 Whether the absence of a filed decree from the subordinate court is fatal to the admission and hearing of the appeal.
- 2 Whether the preliminary objection regarding the missing decree was raised too late in the proceedings.
- 3 Whether the court has discretion to admit the appeal and allow subsequent filing of the decree.
Ratio Decidendi
The court found that although the decree from the subordinate court had not been filed at the time of the appeal, the omission was not fatal. The rules under Order XLIV rule 1A of the Civil Procedure Rules provide that the judge has discretion to admit the appeal for hearing and to set a time frame for the filing of the decree. The court noted that the preliminary objection regarding the missing decree was raised late in the proceedings, after directions had already been taken and the matter had been pending for over a decade. The court exercised its discretion to admit the appeal for hearing and ordered the appellant to file a certified decree within 14 days. The court further directed...
Court Disposition
Preliminary objection dismissed; appeal admitted for hearing subject to filing of certified decree within 14 days.
Orders
- The appeal is admitted for hearing.
- The appellant is ordered to file a certified decree from the subordinate court within 14 days.
Full Case Text
Judgment text and source record
54 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT ELDORET
CIVIL APPEAL 11 OF 1999
KEN KNIT (K) LIMITED::::::::::::APPEALLANT/ORIGINAL DEFENDANT
VERSUS
ALI BAKARI:::::::::::::::::::::::::::::::RESPONDENT/ORIGINAL PLAINTIFF
(From the decision of Hon. M. Kiptoo Ag. Resident Magistrate in SPMC Civil Suit No. 653 ‘A’/90 delivered at the Senior Principal Magistrate’s Court at Eldoret delivered on 6th January, 1999)
R U L I N G
(Preliminary Objection)
I.Background
1. On 29th January 1999 an appeal against the decision of the acting Resident Magistrate was filed to this High Court.This appeal does not appear to have any records showing that it had been admitted for hearing but on 4th October 2002 Hon. Etyang judge, took directions before both parties under order XLIV r 8 Civil Procedure Code.
2. The appeal involved an industrial accident claim whereby the respondent original plaintiff had sustained injuries to his finger that was amputed.An award was given.The appellant defendant being dissatisfied with the decision of that court filed appeal.
3. The appeal having been adjourned several times came for hearing before J.V. Juma J on 29/9/03. The Hon. Judge heard substantial portion of the appeal and adjourned the same to 25th November 2003 for judgment.He was not able to be available to complete the said judgment.
4. Nothing occurred until 3 years later when Ibrahim Judge ordered that one of the deceased respondent be enjoined through their estate.He further ordered the matter be heard De nova.
5. Bauni J. on 5th March 2008 allowed an application for the substitution of the respondent regardless of the opposition by the advocate for the Respondent.
6. On several adjournments of the mater 10th March 2009,16th June 2009, 8th December 2009 the appeal came for hearing on 27th April 2009. The respondent raised a preliminary issue that there was no decree filed Under Order XLIV r 1a Civil Procedure Rules.This means that this was fatal.
7. The advocate for the appellant opposed this on grounds that Etyang J had taken directions and that the respondent had never raised any issues and or objections on this matter for 11 years that this matter had been pending.
II.Opinion
8. The rules under order XLIV r 1A is that before a judge admits an appeal for hearing, he or she through the deputy registrar must ascertain that there is indeed a decree of the subordinates court filed.If there is none the file is to await such decree to be filed but, the judge has discretion to admit the appeal to hearing then give a time limit in which to file a decree.
9. The registrar (note there should be no application filed by parties) is the one who places the file before the Hon. Judge with notices to both parties to attend to court for directions where the file is ready with the decree.
10. Before directions is taken then any party may raise the issue of the courts jurisdiction.
i)Was the appeal filed with leave of the court,
ii)Was it filed within time,
iii)Was a decree filed or not etc.
11. Thereafter order XLIV r 8 b (4) on the issue of the recordsbefore court is taken up.
III.Opinion
12. In this matter the appeal was to be heard De nova.As aprecaution the court went through the preliminaries.It is then that this matter of there being no decree filed was raised.The appellant stated the objection was raised too late.Itshould have been done before Etyang J. on 21st March 2003and was not.
13. This file had a substantial autonomy it therefore means thatnot only is there no decree filed but also the appeal had neverbeen admitted for hearing.
14. This court would now proceed to order that this appeal be andis hereby admitted for hearing.It further orders under Order XLIV r 1 a Civil Procedure Rules that the applicant filesa certified decree within 14 days.
15. That his matter will be mentioned at the convenience of parties to confirm compliance.
16. Costs in the cause.
Dated this 29th day of April, 2010 at Eldoret.
M.A.ANG’AWA
JUDGE
Advocate
A.K. Nyairo Advocate And S. Nyoike Advocateinstructed by the Firm of M/s Nyairo & Company Advocate for the Appellant.
D.K.N. Magare Advocate instructed by the Firm of M/s Magare & Company Advocate for the Respondent
29th April 2010
Coram-Hon. Lady Justice M.A. Ang’awa
Court Clerk-Oscar Limisi
A.K.Nyairo together with S. Nyoike Advocates from the firm of Ms. Nyairo & co. Advocates for the Appeallant-present
D.K.N. Magare Advocate from the firm of Ms. Magare & Co. Advocates for the Respondent-present
Interpretation English
Court:
Ruling signed, read and delivered in open court.
Dated this 29th day of April 2010 at Eldoret
M.A.ANG’AWA
JUDGE
By consent formal mention on 26th May 2010 to confirm compliance.That hearing of appeal be heard on subject to 29 June, 2010 at 9. 00am.subject to compliance of 26th May, 2010
A.K. Nyairo Advocate for Appeallant & Defendant in the Lower Court-Signed.
D.K.N. Magare C/o Magare & Co. Advocates for the Respondent (Plaintiff in Subordinate Court.)
Application granted and orders accordingly
M. A.ANG’AWA
JUDGE
29th April 2010