[2008] KECA 69 (KLR)
The Court of Appeal found that the High Court erred by addressing and determining an application dated 20th December, 1990, which had already been finalized by the Resident Magistrate at Naivasha. The correct application before the High Court was dated 4th February, 1992, and filed on 10th February, 1992. The...
Source-derived case information.
- Citation
- [2008] KECA 69 (KLR)
- Parties
- Appellant: Njoroge Nguyai; Respondent: Naomi Wanjiru Kamanda; Respondent: Viginia Mukuhi Kamanda; Respondent: Serah Muthoni Kamanda
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 331 of 2002
- Procedural Posture
- Civil Appeal / Judgment on Appeal
- Outcome
- appeal allowed; matter remitted to superior court; no order as to costs
- Legal Topics
- Remittal to Lower Court, Appeal Procedure, Judicial Error
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoroge Nguyai
Appellant
Naomi Wanjiru Kamanda
Respondent
Viginia Mukuhi Kamanda
Respondent
Serah Muthoni Kamanda
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal
Legal Issues
- 1 Whether the High Court erred by determining an application that had already been finalized by a lower court.
- 2 Whether the matter should be remitted to the superior court for hearing of the correct application.
Ratio Decidendi
The Court of Appeal found that the High Court erred by addressing and determining an application dated 20th December, 1990, which had already been finalized by the Resident Magistrate at Naivasha. The correct application before the High Court was dated 4th February, 1992, and filed on 10th February, 1992. The appellate court agreed with both parties that the error was not attributable to either side and that the matter should be remitted to the superior court for hearing of the correct application. Consequently, the appeal was allowed, and the matter was sent back to the High Court for hearing. No order as to costs was made, as the error was due to the superior court and not the parties.
Court Disposition
appeal allowed; matter remitted to superior court; no order as to costs
Orders
- The appeal is allowed.
- The matter is remitted to the superior court for hearing of Civil Appeal No. 40 of 1993.
Full Case Text
Judgment text and source record
33 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
CIVIL APPEAL NO. 331 OF 2002
NJOROGE NGUYAI …..……………………….…..…………….… APPELLANT
AND
NAOMI WANJIRU KAMANDA …..…..……………….……. 1ST RESPONDENT
VIGINIA MUKUHI KAMANDA ….......………….………..…. 2ND RESPONDENT
SERAH MUTHONI KAMANDA ……..……...………...…….. 3RD RESPONDENT
(Appeal from the decision of the High Court of Kenya at Nairobi
(Owuor, J.) dated 29th May, 1998
in
H.C.C.C. NO. 40 OF 1993)
*******************
JUDGMENT OF THE COURT
This is an appeal from the judgment of Owuor, J. (as she then was) delivered in Nairobi on 29th May, 1998. When the appeal came up for hearing before us on 21st October, 2008, Mr. S.M.W. Kinuthia appeared for the appellant, while Miss. L.N. Waigera appeared for the respondent.
In his submission, Mr. Kinuthia pointed out that the learned Judge dealt with the application dated 20th December, 1990 instead of that dated 4th February, 1992. Mr. Kinuthia asked us to remit the matter to the superior court for hearing.
On her part, Miss Waigera conceded to Mr. Kinuthia’s submission saying that she would have no problem if the matter were to be taken back to the superior court.
We have perused the record of appeal and we agree with both Mr. Kinuthia and Miss Waigera that the matter be taken back to the superior court for hearing. It is indeed true that the learned Judge dealt with the application dated 20th December, 1990 which application had been dealt with and finalized by the Resident Magistrate at Naivasha. What was before the learned Judge was the appeal from the decision in the application dated 4th February, 1992 and filed on 10th February, 1992. She, unfortunately, overlooked that application hence Mr. Kinuthia is quite right in his submissions.
In the circumstances this appeal is allowed and the matter is remitted to the superior court for hearing of the Civil Appeal No. 40 of 1993.
As none of the parties can be blamed for the error by the superior court, we make no orders as to the costs of this appeal.
Dated and delivered at Nairobi this 24th day of October, 2008.
E.O. O’KUBASU
………………..
JUDGE OF APPEAL
J.W. ONYANGO OTIENO
………………..
JUDGE OF APPEAL
D.K.S. AGANYANYA
………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR