[2006] KEHC 1464 (KLR)
The court found that the delay in the transmission of the lower court record and judgment was not attributable to the appellant, as repeated requests by the Deputy Registrar to the Resident Magistrate had gone unanswered. To ensure the appeal is not prejudiced by administrative delays, the court exercised its power...
Source-derived case information.
- Citation
- [2006] KEHC 1464 (KLR)
- Parties
- Appellant: Kimatu Mbuvi; Respondent: Patrick Wambua John
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 51 of 1999
- Procedural Posture
- Civil Appeal / Interlocutory Application for Directions and Production of Lower Court Record
- Outcome
- Application allowed. Summons issued to Executive Officer to produce lower court record or explain its whereabouts.
- Legal Topics
- Appeal Record Transmission, Delay in Appeal Hearing, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimatu Mbuvi
Appellant
Patrick Wambua John
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Directions and Production of Lower Court Record
Legal Issues
- 1 Whether the High Court should order the production of the lower court record and exhibits for the purpose of hearing the pending appeal.
- 2 Whether the delay in forwarding the proceedings and judgment from the lower court can be attributed to the appellant.
Ratio Decidendi
The court found that the delay in the transmission of the lower court record and judgment was not attributable to the appellant, as repeated requests by the Deputy Registrar to the Resident Magistrate had gone unanswered. To ensure the appeal is not prejudiced by administrative delays, the court exercised its power to summon the Executive Officer of the Kangundo Resident Magistrate's Court to produce the entire record or explain its whereabouts. This action is necessary to facilitate the hearing and disposal of the appeal, uphold the appellant's right to be heard, and prevent injustice arising from procedural delays outside the appellant's control.
Court Disposition
Application allowed. Summons issued to Executive Officer to produce lower court record or explain its whereabouts.
Orders
- A summons shall issue requiring the attendance of the Executive Officer in charge of the Resident Magistrate’s Court Kangundo Civil Registry to appear before this court and either produce the entire record of Kangundo RMCC NO.280 of 1998 together with the exhibits therein or provide a record to show its whereabouts.
- The date of the hearing of the Executive Officer's explanation to be given in court.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Appeal 51 of 1999
KIMATU MBUVI…………………..................................................……………………APPELLANT
VERSUS
PATRICK WAMBUA JOHN……….........................................……………………RESPONDENT
RULING
Mr Muriungi has applied for an order of this court directing the Deputy Registrar of this court to request for the proceedings of Kangundo Senior Resident Magistrate Civil Case No.280 of 1998 together with all the original exhibits produced during trial and copies of typed proceedings and certified copies of judgement to be forwarded to this court for purposes of the hearing and disposal of the appeal filed herein. It also seeks this courts directions as to the admission or rejection of the appeal as filed and directions thereby as to service of the memorandum of appeal on the respondent if necessary or called for; and further for direction as to the hearing of the appeal if at all.
The applicant lodged his appeal against the Kangundo Senior Resident Magistrate’s Court decision on the 19th April, 1999. To date the proceedings and judgement of the lower court have never been forwarded to the High Court. Therefore the appeal has remained pending for the last 12 years. The applicant fears and justifiably so, that the defendant may move the court for the dismissal of this appeal. The delay that has caused the appeal to remain pending for so long cannot be blamed on the appellant/applicant as it is beyond his power or control.
I have perused the record of appeal herein and I find that a letter written by the Deputy Registrar of this court to the Resident Magistrate at Kangundo asking for the proceedings and judgment in January, 2005 went unanswered. It was not the first time that such a letter had been written to the Resident Magistrate with similar results.
I now make an order requiring that a summons requiring the attendance of the Executive Officer in charge of the Resident Magistrate’s Court Kangundo Civil Registry to appear before this court and either produce the entire record of Kangundo RMCC NO.280 of 1998 together with the exhibits therein and failing that, a record to show its whereabouts. The date of the hearing of the Executive Officers explanation to be given in Court.
Dated at Machakos this 17th day of May, 2006.
J. LESIIT
JUDGE
17/5/2006