[2020] KEHC 5254 (KLR)
The court found that, despite the appellant's counsel claiming to have filed the record of appeal and served the respondent, there is no record of appeal in the court file. Since the record of appeal is essential for the court to consider the merits of the appeal and write a judgment, the absence of the record...
Source-derived case information.
- Citation
- [2020] KEHC 5254 (KLR)
- Parties
- Appellant: Ndegwa Gichine; Respondent: Sicily Warwre Njira
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 19 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Readiness for Judgment; Record of Appeal Missing
- Outcome
- Judgment deferred; matter listed for mention to confirm filing of record of appeal.
- Judges
- LW Gitari
- Legal Topics
- Appeal Admission, Record of Appeal Filing, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ndegwa Gichine
Appellant
Sicily Warwre Njira
Respondent
Procedural Posture
Civil Appeal / Ruling on Readiness for Judgment; Record of Appeal Missing
Legal Issues
- 1 Whether the record of appeal was properly filed and is available in the court file.
- 2 Whether the court can proceed to judgment in the absence of the record of appeal.
Ratio Decidendi
The court found that, despite the appellant's counsel claiming to have filed the record of appeal and served the respondent, there is no record of appeal in the court file. Since the record of appeal is essential for the court to consider the merits of the appeal and write a judgment, the absence of the record renders the matter not ready for judgment. The court therefore cannot proceed to judgment until it is confirmed whether the record of appeal was indeed filed and is available in the file.
Court Disposition
Judgment deferred; matter listed for mention to confirm filing of record of appeal.
Orders
- The matter will be listed for mention for the counsel for the appellant to confirm whether the record of appeal was indeed filed.
- Parties to take a mention date by consent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERUGOYA
HIGH COURT CIVIL APPEAL NO. 19 OF 2017
NDEGWA GICHINE.........................................................................APPELLANT
VERSUS
SICILY WARWRE NJIRA.............................................................RESPONDENT
RULING
1. This is an appeal arising from the Judgment and decree in Wanguru Principal Magistrate Court Civil Case No.133 of 2013. It is now pending Judgment, however, I find that the Judgment in this matter is premature.
2. This appeal was admitted under Section 79 (b) of the Civil Procedure Act, on 7th of May,2018. On 9th of May, 2018 the Deputy Registrar sent a Notice of Admission of Appeal to the firm of Wambugu Kariuki Associates Advocates, informing them that the appeal had been admitted for hearing and directing the advocates to prepare a record of appeal and file the same within 21 days.
3. From the record, there is a letter addressed to the Deputy registrar by the said firm of Wambugu Kariuki Associates advocates dated 1st October, 2018, which was received on 19th November, 2018, whose contents are that, he had filed a record of appeal, on 25th of April, 2018 and served the counsel for the respondent on 7th May, 2018.
4. This appeal was admitted on 7th May, 2018, which would mean that he had filed the record of appeal before the appeal was admitted. However, upon perusal of the record, I have not come across any record of appeal. It will therefore, not be able to proceed to write the judgment without the record of appeal.
5. If any record was filed, as stated in the letter by Wambugu Kariuki advocates in the letter mentioned above, then it is not in the file. In the circumstances, the matter will be listed for mention for the counsel for the appellant, to confirm whether the record of appeal was indeed filed. Parties to take a mention date by consent.
Dated at Kerugoya this 29th day of May 2020.
L.W. GITARI
JUDGE