[2015] KEHC 4471 (KLR)
The court found that the error in the case number on the pleadings was attributable to counsel for the respondent and not the registry. Punishing the litigant for counsel's error would contravene the Overriding Principles of justice. Therefore, the application for release of monies or execution pending appeal was...
Source-derived case information.
- Citation
- [2015] KEHC 4471 (KLR)
- Parties
- Applicant: Muxon Hauliers Ltd; Applicant: Joseph Maiwa Kimani; Respondent: Ben Wekesa Mangoli (suing as legal representative of the estate of Ramadhan Ayub Wekesa - deceased)
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 199 of 2013
- Procedural Posture
- Criminal Appeal / Ruling on Interlocutory Application Regarding Release of Monies and Execution Pending Appeal
- Outcome
- Application declined; administrative correction ordered; costs awarded to applicant.
- Legal Topics
- Release of Funds, Execution Pending Appeal, Case Number Anomalies
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muxon Hauliers Ltd
Applicant
Joseph Maiwa Kimani
Applicant
Ben Wekesa Mangoli (suing as legal representative of the estate of Ramadhan Ayub Wekesa - deceased)
Respondent
Procedural Posture
Criminal Appeal / Ruling on Interlocutory Application Regarding Release of Monies and Execution Pending Appeal
Legal Issues
- 1 Whether the court should order release of monies held in an interest earning account or allow execution of the decree pending appeal.
- 2 Whether an error in the case number heading on pleadings should prejudice the litigant.
Ratio Decidendi
The court found that the error in the case number on the pleadings was attributable to counsel for the respondent and not the registry. Punishing the litigant for counsel's error would contravene the Overriding Principles of justice. Therefore, the application for release of monies or execution pending appeal was declined. The court ordered the registry to correct the case number anomaly, directed that the record of appeal be filed under the new cause within 14 days, and awarded costs to the applicant. The appeal was to be set down for hearing within 60 days.
Court Disposition
Application declined; administrative correction ordered; costs awarded to applicant.
Orders
- Application dated 8th July, 2014 is declined.
- Registry to correct the anomaly and assign a fresh case number to the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CRIMINAL APPEAL NO. 199 OF 2013
MUXON HAULIERS LTD…………………………1ST APPLICANT
JOSEPH MAIWA KIMANI…………………………2ND APPLICANT
VERSUS
BEN WEKESA MANGOLI [suing as legal representative of the estate of RAMADHAN AYUB WEKESA- DECEASED]
RULING
1. Application before court is dated 5th July 2014 brought under section 1 (A), (B), 3 & 3A of the Civil Procedure Act seeking to have the monies being held in an interest earning account in the names of counsel on record for the parties released or execution of the decree be allowed. The application is based on the ground that the appeal has been preferred in this matter as agreed by the parties in a consent dated 5th November, 2015.
2. The application is objected through a replying affidavit dated the 9th December 2014 sworn by Ziporah Mutina Counsel for the Applicant/Respondent. It is the Respondent’s case that a Memorandum of Appeal was filed and Counsel has been following processing of the proceedings.
3. On record there is a Memorandum of Appeal filed under a miscellaneous cause in which the Respondent had sought to enlarge time. There is also an erasure and/or amendment of the Case Number form Misc Appeal No. 199 of 2014 to Civil Appeal 11 of 2014. Counsel for the respondent blames the issue of case number and the erasures on the Judiciary
4. From the court record I am of the view that the registry cannot be faulted for citing the Case Number on the pleading being filed. There was a definite error on the part of the Respondent’s Counsel in heading of the pleadings and therefore the issue for this court is whether to punish the litigant due to ignorance and/or error on the part of counsel obviously to punish the litigant will be to go against the Overriding Principles which indeed the applicant seeks to rely on. I do however appreciate the concerns of the applicant as well, and to be fair and just to both sides I order as follows;
I decline the application dated 8th July, 2014.
The registry do correct the anomaly and give fresh case number to the appeal.
The record of appeal be filed under the new cause within 14 days of the date hereof.
The Respondents counsel do pay the applicant costs of Kshs. 5,000/=
5. The appeal be set down for hearing within 60 days.
Dated at Bungoma this 12th day of May 2015.
ALI-ARONI
JUDGE.