[2024] KEHC 13879 (KLR)
The court held that the validity of the appeal and the merits of the preliminary objection can only be determined after the appeal has been admitted for hearing. Since the record of appeal had not been filed and the appeal was yet to be admitted, the court was not in a position to address the preliminary objection...
Source-derived case information.
- Citation
- [2024] KEHC 13879 (KLR)
- Parties
- Appellant: Kennedy Makori Mose; Respondent: Robert Nyagetiria Karori
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E015 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Prior to Admission of Appeal
- Outcome
- Determination of the preliminary objection deferred; no orders on merits at this stage.
- Judges
- WA Okwany
- Legal Topics
- Appeal Admission, Preliminary Objection, Timeliness of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kennedy Makori Mose
Appellant
Robert Nyagetiria Karori
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Prior to Admission of Appeal
Legal Issues
- 1 Whether the appeal was filed out of time without leave of the court.
- 2 Whether the court can determine the preliminary objection before the appeal is admitted for hearing.
Ratio Decidendi
The court held that the validity of the appeal and the merits of the preliminary objection can only be determined after the appeal has been admitted for hearing. Since the record of appeal had not been filed and the appeal was yet to be admitted, the court was not in a position to address the preliminary objection at this stage. The court therefore deferred consideration of the preliminary objection until such time as the appeal is admitted for hearing.
Court Disposition
Determination of the preliminary objection deferred; no orders on merits at this stage.
Orders
- Findings on the merits of the preliminary objection are shelved until the appeal is admitted for hearing.
Full Case Text
Judgment text and source record
21 paragraphs
Mose v Karori (Civil Appeal E015 of 2024) [2024] KEHC 13879 (KLR) (31 October 2024) (Ruling)
Neutral citation: [2024] KEHC 13879 (KLR)
Republic of Kenya
In the High Court at Nyamira
Civil Appeal E015 of 2024
WA Okwany, J
October 31, 2024
Between
Kennedy Makori Mose
Appellant
and
Robert Nyagetiria Karori
Respondent
(Being an Appeal from the Judgment in the Senior Principal Magistrate’s Court at Keroka, MCCC No. E044 of 2022 delivered by Hon. C. Ombija, Senior Resident Magistrate on 4th October 2023)
Ruling
Introduction 1. The Appellant was convicted for the offence of assault causing actual bodily harm vide Keroka Criminal Case No. 561 of 2020. He was, upon conviction, sentenced to serve 12 months’ imprisonment. The Respondent herein, who was the complainant in the assault case thereafter instituted civil proceedings against the Appellant in Keroka Principal Magistrate Court Civil Suit No. E044 of 2022 seeking damages arising out of the assault. Default judgment entered against the Appellant in the civil case and his attempts to set aside the default judgment were unsuccessful. The decree arising from the judgment was executed by way of committal of the Appellant to civil jail.
2. Aggrieved by the trial court’s judgment and decision to commit him to civil jail, the Appellant filed the instant appeal. I note that the said appeal is yet to be admitted for hearing. The Respondent however filed a preliminary objection to the appeal in which he argues that the appeal was filed out of time without the leave of the court.
3. I however note that the Record of appeal is yet to be filed and this means that the appeal is yet to be admitted for hearing and this court is therefore not able to peruse the said record with an order to confirm the veracity of the timelines and the averments that have been made by the parties. As matters stand now, it is still possible that the appeal may not be admitted for hearing in which case, a determination on the Preliminary Objection may not arise.
4. It is my finding that the issue of the validity of the appeal is one that can only be discussed after the admission of the said appeal for hearing. I will in the circumstances shelve my findings on the merits of the Preliminary Objection until such a time that the appeal will be admitted for hearing.
5. It is so ordered.
RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 31ST DAY OF OCTOBER 2024. W. A. OKWANYJUDGE