[2012] KEHC 2111 (KLR)
The court held that, in light of the new constitutional dispensation, technicalities such as the absence of a certified copy of the decree or order appealed from should not prevent the court from hearing an appeal, provided it is clear what order or decree is being appealed against. The emphasis is on substantive...
Source-derived case information.
- Citation
- [2012] KEHC 2111 (KLR)
- Parties
- Appellant: Malombe Nzila; Respondent: Muindi Musili
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 75 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Procedural Issue Prior to Hearing
- Outcome
- Appeal to be fixed for hearing; no dismissal on technical grounds.
- Judges
- DW Mbuteti
- Legal Topics
- Appeal Record Requirements, Technicalities Vs Substance, Certified Decree Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Malombe Nzila
Appellant
Muindi Musili
Respondent
Procedural Posture
Civil Appeal / Ruling on Procedural Issue Prior to Hearing
Legal Issues
- 1 Whether the appeal is competent in the absence of a certified copy of the decree or order appealed from in the record of appeal.
- 2 Whether technical non-compliance should bar the hearing of the appeal.
Ratio Decidendi
The court held that, in light of the new constitutional dispensation, technicalities such as the absence of a certified copy of the decree or order appealed from should not prevent the court from hearing an appeal, provided it is clear what order or decree is being appealed against. The emphasis is on substantive justice rather than procedural technicalities. Consequently, the file is to be returned to Machakos for the appeal to be fixed for hearing.
Court Disposition
Appeal to be fixed for hearing; no dismissal on technical grounds.
Orders
- The file is to be taken back to Machakos so that the appeal can be fixed for hearing.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Appeal 75 of 2008
MALOMBE NZILA ....................................................... APPELLANT
V E R S U S
MUINDI MUSILI .....................................................RESPONDENTS
R U L I N G
1. This appeal was included in the list of those pending ruling or judgment before me by mistake. It was to be mentioned after ruling in another appeal where the point had been taken whether or not the appeal was competent without a certified copy of the decree or order appealed from in the record of appeal.
2. I may mention that in the new Constitutional dispensation there is a lot less emphasis on technicalities of law or procedure and more emphasis on adjudicating upon the real issues between the parties. So, as long as it is clear what order or decree is appealed against, the court should be able to hear the appeal.
3. This file will therefore be taken back to Machakos so that the appeal can be fixed for hearing. The delay in forwarding back the file is regretted.
DATED AT NAIROBI THIS 8TH DAY OF AUGUST 2012
H.P.G. WAWERU
JUDGE
COUNTERSIGNED AND DELIVERED AT MACHAKOS THIS 28TH DAY OF SEPTEMBER 2012
ASIKE-MAKHANDIA
…………………….
JUDGE