[2012] KEHC 5659 (KLR)
The High Court declined to proceed with the determination of the appeal in the absence of the lower court file and the full ruling containing the reasons for the orders appealed against. The court held that it is essential for an appellate court to peruse and evaluate the lower court's reasoning before making a...
Source-derived case information.
- Citation
- [2012] KEHC 5659 (KLR)
- Parties
- Appellant: Maurice Khatera Munyifwa; Respondent: Tabitha Okayo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2 of 2009
- Procedural Posture
- Civil Appeal / Interlocutory Directions Pending Perusal of Lower Court File
- Outcome
- Directions issued for the lower court file to be availed before further proceedings; no final determination on the appeal at this stage.
- Judges
- D Schofield
- Legal Topics
- Maintenance Orders, Matrimonial Property, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Maurice Khatera Munyifwa
Appellant
Tabitha Okayo
Respondent
Procedural Posture
Civil Appeal / Interlocutory Directions Pending Perusal of Lower Court File
Legal Issues
- 1 Whether the trial court's orders for maintenance and release of personal belongings were properly granted in the absence of the full ruling.
- 2 Whether the appellate court can proceed to determine the appeal without the lower court file and full reasons for the orders appealed against.
Ratio Decidendi
The High Court declined to proceed with the determination of the appeal in the absence of the lower court file and the full ruling containing the reasons for the orders appealed against. The court held that it is essential for an appellate court to peruse and evaluate the lower court's reasoning before making a decision on the merits of the appeal. Accordingly, the Deputy Registrar was directed to call for the lower court file and place it before the judge for proper consideration of the appeal.
Court Disposition
Directions issued for the lower court file to be availed before further proceedings; no final determination on the appeal at this stage.
Orders
- Deputy Registrar to call for the lower court file from the Chief Magistrate Court at Milimani Commercial Courts in Maintenance Cause No.35 of 2008 and place it before the court.
- Matter to be mentioned on 22.3.2012 for further directions.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO.2 OF 2009
MAURICE KHATERA MUNYIFWA ………... APPELLANT
V
TABITHA OKAYO ………………………….. RESPONDENT
JUDGEMENT
MAURICE KHATERA MUNYIFWA, the Appellant, is the husband of Tabitha Okaya, the Respondent. They got married on 10th January 1990 under the African customary law of the Luhya and cohabited as man and wife until the year 2008 when the Respondent alleged that she had been forced out of their home at Ruiru and denied access to their matrimonial home on Plot Number Ruiru/East Ruiru/99/100. The couple had no child. The Respondent went to court and filed Separation Cause No.35 of 2008 in Milimani Commercial Courts in which she prayed for a separation order and maintenance of Shs.35,000/= per month.
On 9th December 2008, the Hon. M. Kiema, Resident Magistrate, made orders (1) Compelling the Defendant to release to the Respondent her personal belongings left behind in the 4 bed roomed matrimonial home in Ruiru (on Plot No.Ruiru/East Ruiru/99/100) and (2) ordering
the Appellant to pay to the Respondent a monthly sum of Shs.35,000/= on account of her general maintenance failing which the same would be deducted from the Appellant’s salary and/or income.
It is against these orders given on 4th December 2008) that the Applicant appealed.
In her Memorandum of Appeal dated and filed in court on 12. 1.2009, the Appellant set out 14 grounds of Appeal. I have seen the formal orders extracted from the Ruling of the learned trial magistrate but I have not seen the full Ruling. I have also not seen the lower court file. I am not sure why the Deputy Registrar did not call for the lower court file. The advocates for the parties have not annexed the ruling of the trial court containing the orders appealed against. It is in that ruling that the reasons for the orders appealed from are contained. This court as the first appellate court needs to peruse and evaluate it before making a decision on the appeal.
Accordingly, I direct the Deputy Registrar to call for the lower court file from the Chief Magistrate Court at Milimani Commercial Courts in Maintenance Cause No.35 of 2008 and place it before me in this appeal.
Parties shall return to court on 22. 3.2012 when this matter shall be mentioned for further directions.
Dated at Milimani Law Courts, Nairobi, this 16th day
of Feruary 2012.
G.B.M. KARIUKI, SC
JUDGE
COUNSEL APPEARING
Ms Mithamo of Wafula Simiyu & Co. Advocates for the Appellant
Mr. Obwae of Odawa Ombayo & Ochich & Co Advocates for the Respondent
Mr. Kugwa - Court Clerk