[2007] KEHC 2386 (KLR)
The appeal was dismissed because it was found to be incompetent, having raised grounds that extended beyond the ruling dated 5th September 2003. The court held that the magistrate exercised his discretion properly in refusing the adjournment, providing adequate reasons, and there was no misdirection on law or facts....
Source-derived case information.
- Citation
- [2007] KEHC 2386 (KLR)
- Parties
- Appellant: Margaret Kaliesa Indumwa; Appellant: Eric O. Indumwa (both suing as personal representative of the estate of the late David Indumwa Galo); Respondent: Peter Koskei; Respondent: Kenya Commercial Bank
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 650 of 2003
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs to the respondents
- Judges
- JM Khamoni
- Legal Topics
- Appeal Incompetence, Adjournment Requests, Exercise of Discretion, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Margaret Kaliesa Indumwa
Appellant
Eric O. Indumwa (both suing as personal representative of the estate of the late David Indumwa Galo)
Appellant
Peter Koskei
Respondent
Kenya Commercial Bank
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was properly confined to the ruling dated 5th September 2003.
- 2 Whether the magistrate exercised discretion properly in refusing an adjournment.
- 3 Whether there was any misdirection on law or facts by the magistrate.
Ratio Decidendi
The appeal was dismissed because it was found to be incompetent, having raised grounds that extended beyond the ruling dated 5th September 2003. The court held that the magistrate exercised his discretion properly in refusing the adjournment, providing adequate reasons, and there was no misdirection on law or facts. The judge found no basis to interfere with the magistrate's decision and awarded costs to the respondents.
Court Disposition
appeal dismissed with costs to the respondents
Orders
- The appeal is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 650 of 2003
MARGARET KALIESA INDUMWA …..…....…….APPELLANT
ERIC O. INDUMWA (both suing as personal representative
Ofthe estate of the late DAVID INDUMWA GALO)
- VERSUS -
PETER KOSKEI ……………....…………..1ST RESPONDENT
KENYA COMMERCIAL BANK …..…....…2ND RESPONDENT
(An appeal from the Ruling of the Senior Principal Magistrate at Milimani Commercial Courts, Mr. Nyakundi dated 5th day of September 2003 in RMCC No. 8513 of 1999)
J U D G M E N T
From what has been brought to my attention during the hearing of this appeal the same is hereby dismissed with costs to the Respondent for the following reasons:-
Firstly, although it is stated that the appeal is from the ruling of the Senior Principal Magistrate at Milimani Commercial Courts dated 5th September 2003 in RMCC No.8518 of 1999, reading the grounds of appeal in the Memorandum of Appeal in the light of what counsel for the Appellant Mr. Amendi has said reveals that this appeal is against orders wider than the ruling dated 5th September 2003. An example is ground number 6 stating:
“The learned magistrate misdirected himself when he refused to grant the request for an adjournment when such request was the only and first one by the advocates on record.”
Where did that happen in the proceedings in which the ruling dated 5th September 2003 was delivered? That makes this appeal bad in law and therefore incompetent.
Secondly, in the ruling dated 5th September 2003, the learned magistrate who was exercising histhe discretion gave good reasons for his decision and I find no misdirection on the law or misapprehension on the facts or that the learned magistrate took into consideration what should not have been taken into consideration or left out considerations which should have been taken into account. Otherwise I do not find his decision to have been wrong.
Dated this 21st day of June 2007.
J.M. KHAMONI
JUDGE