[2004] KEHC 2261 (KLR)
The court found that the Deputy Registrar did not have jurisdiction under Order XLI rule 8B(1) of the Civil Procedure Rules to give directions in the appeal. The rule expressly requires that directions be given by a Judge in chambers. As a result, the directions given by the Deputy Registrar were incompetent, and...
Source-derived case information.
- Citation
- [2004] KEHC 2261 (KLR)
- Parties
- Appellant: Miriam Naliaka; Respondent: Beth Wanjiru Kamotho
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- ? 40 of 1998
- Procedural Posture
- Civil Appeal / Ruling on Procedural Competence and Directions
- Outcome
- Directions and proceedings set aside; parties to take competent directions before hearing.
- Judges
- JK Sergon
- Legal Topics
- Appeal Directions, Jurisdiction of Registrar, Setting Aside Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Miriam Naliaka
Appellant
Beth Wanjiru Kamotho
Respondent
Procedural Posture
Civil Appeal / Ruling on Procedural Competence and Directions
Legal Issues
- 1 Whether the Deputy Registrar had jurisdiction to give directions under Order XLI rule 8B(1) of the Civil Procedure Rules.
- 2 Whether the directions given by the Deputy Registrar were competent to enable the appeal to be listed for hearing.
- 3 Whether the proceedings and submissions taken in the absence of competent directions should be set aside.
Ratio Decidendi
The court found that the Deputy Registrar did not have jurisdiction under Order XLI rule 8B(1) of the Civil Procedure Rules to give directions in the appeal. The rule expressly requires that directions be given by a Judge in chambers. As a result, the directions given by the Deputy Registrar were incompetent, and any subsequent proceedings or submissions based on those directions were premature and invalid. The court exercised its inherent power to set aside both the directions and the proceedings taken in reliance on them, and directed the parties to take competent directions before the matter could proceed to hearing.
Court Disposition
Directions and proceedings set aside; parties to take competent directions before hearing.
Orders
- The directions given by the Deputy Registrar on 18th November 2002 are set aside.
- The proceedings and submissions of 2nd March 2004 are set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
HIGH COURT AT BUSIA
CIV APP NO. 40 OF 1998
MIRIAM NALIAKA ………… APPELLANT
VS
BETH WANJIRU KAMOTHO …….. RESPONDENT
R U L I N G
This appeal came up for hearing on the premise that all the preliminary procedures have been complied with under the provisions of Order XLI of the Civil Procedure rules. Being vigilant I had to satisfy myself that I was dealing with a competent appeal by perusing the record of appeal. The record discloses that directions in this appeal were taken on 18th November 2002 pursuant to the provisions of Order XLI rule 8 B (1) of the Civil Procedure rules before the Deputy Registrar of this court.
The Deputy Registrar obviously did not have jurisdiction to give directions under the law. The provisions of Order XLI rule 8 B (1) provides:
“On notice to the parties delivered not less than twenty -one days after the date of service o f the memorandum of appeal the registrar shall list the appeal for the giving of directions by a Judge in chambers.”
Consequently there were no competent directions to enable this appeal to be listed for hearing. I hereby exercise my inherent power to set aside the directions given by the Deputy Registrar on 18. 11. 2002 ex-debito Justitae.
Thus in the absence of directions, then this appeal cannot be said to be ready for hearing. Hence the proceedings or submissions of 2nd March 2004 were prematurely taken. I will set aside the proceedings and direct the parties to take competent directions as prescribed by law.
DATED AND DELIVERED THIS 4th DAY OF June 2004
J.K. SERGON
JUDGE