[2019] KEHC 7110 (KLR)
The court determined that it could not proceed to judgment on the appeal because the lower court file had not been availed and the judgment included in the Record of Appeal was incomplete. The absence of the full record precluded a proper and fair determination of the appeal. Accordingly, the court deferred delivery...
Source-derived case information.
- Citation
- [2019] KEHC 7110 (KLR)
- Parties
- Appellant: Martin Otieno; Appellant: Kenya Revenue Authority; Respondent: Thomas Mwita Marwa
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 169 of 2018
- Procedural Posture
- Civil Appeal / Interlocutory Order; Judgment Deferred Pending Receipt of Lower Court File
- Outcome
- Judgment deferred; further orders issued for production of lower court file.
- Judges
- AC Mrima
- Legal Topics
- Appeal Record, Stay of Execution, Judgment Deferment
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Martin Otieno
Appellant
Kenya Revenue Authority
Appellant
Thomas Mwita Marwa
Respondent
Procedural Posture
Civil Appeal / Interlocutory Order; Judgment Deferred Pending Receipt of Lower Court File
Legal Issues
- 1 Whether the High Court can proceed to determine the appeal in the absence of the complete lower court file and judgment.
- 2 Whether the application for stay of payment should be addressed or compromised pending the main appeal.
Ratio Decidendi
The court determined that it could not proceed to judgment on the appeal because the lower court file had not been availed and the judgment included in the Record of Appeal was incomplete. The absence of the full record precluded a proper and fair determination of the appeal. Accordingly, the court deferred delivery of judgment and directed the Deputy Registrar to call for the lower court file, with the matter to be mentioned for further directions.
Court Disposition
Judgment deferred; further orders issued for production of lower court file.
Orders
- The judgment in this appeal is hereby deferred pending further orders.
- The Deputy Registrar shall call for the lower court file and place it before Court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENY AT MIGORI
CIVIL APPEAL NO. 169 OF 2018
MARTIN OTIENO
KENYA REVENUE AUTHORITY..............................APPELLANTS
-VERSUS-
THOMAS MWITA MARWA.......................................RESPONDENT
ORDER
1. A Memorandum of Appeal herein was filed by the Appellants after the trial court rendered its final decision on 25/10/2018. The Appellants then filed of an application on 19/02/2019 by way of a Notice of Motion evenly dated inter alia seeking orders to stay the payment of Kshs. 2,500,000/=.
2. When the application came up for hearing on 08/03/2019 parties with the concurrence of the Court agreed to compromise the application and instead deal with the main appeal. Appropriate directions were given to that end and parties duly complied with including filing of respective written submissions and the matter was set for judgment.
3. As I retired to write the judgment herein, I realized that the lower court file had not been availed before this Court and that the judgment which was included in the Record of Appeal was incomplete. I therefore could not do the decision and it is on the basis thereof that the following orders do hereby issue: -
(a) The judgment in this appeal is hereby deferred pending further orders.
(b) The Deputy Registrar shall call for the lower court file and place it before Court.
(c) This matter shall be fixed for Mention on 08/07/2019 to ascertain the position and for further orders.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 30th day of May 2019.
A. C. MRIMA
JUDGE