[2019] KEHC 10181 (KLR)
The court held that Civil Appeal No. 80 of 2016 was conclusively determined by the judgment delivered on 05/07/2018 and the file was closed. Any subsequent dissatisfaction with the re-assessment of the bill of costs in Migori Chief Magistrate’s Misc. Application No. 71 of 2016 must be pursued through a fresh appeal...
Source-derived case information.
- Citation
- [2019] KEHC 10181 (KLR)
- Parties
- Appellant: Nahashon Kerati Muriri t/a Muriri Auctioneers; Respondent: South Nyanza Sugar Co. Ltd.
- Court
- High Court
- Court Station
- High Court at Migori
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 80 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Post Judgment Application
- Outcome
- Proceedings and documents filed after judgment struck out; leave granted to file fresh appeal/reference; file marked as closed.
- Judges
- AC Mrima
- Legal Topics
- Appeal Procedure, Bill of Costs Assessment, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nahashon Kerati Muriri t/a Muriri Auctioneers
Appellant
South Nyanza Sugar Co. Ltd.
Respondent
Procedural Posture
Civil Appeal / Ruling on Post Judgment Application
Legal Issues
- 1 Whether the court file for Civil Appeal No. 80 of 2016 could be revived after judgment was delivered and the file closed.
- 2 Whether documents filed after the judgment, including the Chamber Summons dated 17/09/2018, were properly before the court.
- 3 Whether the respondent should be granted leave to file a fresh appeal or reference against the re-assessment of the bill of costs.
Ratio Decidendi
The court held that Civil Appeal No. 80 of 2016 was conclusively determined by the judgment delivered on 05/07/2018 and the file was closed. Any subsequent dissatisfaction with the re-assessment of the bill of costs in Migori Chief Magistrate’s Misc. Application No. 71 of 2016 must be pursued through a fresh appeal or reference, not by attempting to revive the already concluded appeal. Accordingly, all proceedings and documents filed after the judgment, including the Chamber Summons dated 17/09/2018, were struck out. The respondent was granted leave to file a fresh appeal or reference within 30 days, and the file was marked as closed.
Court Disposition
Proceedings and documents filed after judgment struck out; leave granted to file fresh appeal/reference; file marked as closed.
Orders
- All proceedings and documents filed after 05/07/2018 are struck out.
- Leave is granted to the respondent to lodge a fresh appeal/reference against the decision rendered in Migori Chief Magistrate’s Misc. Application No. 71 of 2016 within 30 days.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT MIGORI
CIVIL APPEAL NO. 80 OF 2016
NAHASHON KERATI MURIRIT/A MURIRI AUCTIONEERS......APPELLANT
-VERSUS-
SOUTH NYANZA SUGAR CO. LTD.................................................RESPONDENT
RULING
1. The Appellant herein is an Auctioneer who filed Migori Chief Magistrate’s Misc. Application No. 71 of 2016 on 10/08/2016 towards the assessment of the Auctioneer charges. The assessment was done by Hon. Nyagah on 11/10/2016. Dissatisfied with the assessment the Auctioneer filed the instant appeal which was heard and determined by a decision of this Court rendered on 05/07/2018 where the Bill of Costs was ordered to be re-assessed.
2. It seems that the Bill of Costs was indeed re-assessed and the Respondent herein was dissatisfied with the ruling and filed the Chamber Summons dated 17/09/2018.
3. There is a serious administrative error in this matter. Appeal No. 80 of 2016 was determined by the judgment delivered on 05/07/2018 and the Court file was accordingly closed. It was Migori Chief Magistrate’s Misc. Application No. 71 of 2016 which was ordered to be re-assessed. Any party dissatisfied with the resultant re-assessment was to lodge a fresh appeal but not to attempt to revive this appeal. The issues raised in this appeal were long judicially settled. The current appeal cannot therefore be alleged to be an extension of the earlier appeal or at all.
4. The current appeal cannot therefore stand in this file. The proceedings and documents filed after the delivery of the judgment on 05/07/2018 are hereby struck out. Given that the Registry ought to have declined to accept the Chamber Summons dated 17/09/2018 as part of this record, the Respondent cannot be wholly blamed.
5. I will hence grant leave to the Respondent herein to lodge a fresh appeal/reference against the decision rendered in Migori Chief Magistrate’s Misc. Application No. 71 of 2016 on 16/08/2018 within 30 days of this order.
6. This file shall henceforth be marked as closed.
Orders accordingly.
DELIVERED, DATED and SIGNED at MIGORI this 14th day of February 2019.
A. C. MRIMA
JUDGE
Judgment delivered in open Court and in the presence of: -
Nashon Kerati Muririthe Appellant in person.
Mr. Marvin Oderoinstructed by the firm of Okongo Wandago & Company Advocates for the Respondent.
Evelyn Nyauke– Court Assistant