[2024] KEHC 3894 (KLR)
The High Court cannot determine the appeal without the original trial court record, as required by Order 42 Rule 13(4)(c) of the Civil Procedure Rules. The trial record is essential for the court's supervisory jurisdiction and for authenticating the record of appeal. In the absence of the trial court record, the...
Source-derived case information.
- Citation
- [2024] KEHC 3894 (KLR)
- Parties
- Appellant: Camulus Odhiambo Olayo; Respondent: George Ochieno Olayo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Succession Appeal E007 of 2022
- Procedural Posture
- Succession Appeal / Interlocutory Ruling on Availability of Trial Court Record
- Outcome
- No determination on the merits; directions issued for production of trial court record.
- Judges
- WM Musyoka
- Legal Topics
- Appeal Record Availability, Supervisory Jurisdiction, Probate and Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Camulus Odhiambo Olayo
Appellant
George Ochieno Olayo
Respondent
Procedural Posture
Succession Appeal / Interlocutory Ruling on Availability of Trial Court Record
Legal Issues
- 1 Whether the High Court can determine the appeal in the absence of the original trial court record.
- 2 Whether the original trial court record must be availed before the appeal can proceed.
Ratio Decidendi
The High Court cannot determine the appeal without the original trial court record, as required by Order 42 Rule 13(4)(c) of the Civil Procedure Rules. The trial record is essential for the court's supervisory jurisdiction and for authenticating the record of appeal. In the absence of the trial court record, the court is unable to proceed with the determination of the appeal. The Deputy Registrar is directed to call for the original trial court records, and the matter will be mentioned on a date to be allocated for compliance and further directions.
Court Disposition
No determination on the merits; directions issued for production of trial court record.
Orders
- The Deputy Registrar is directed to call for the original trial court records.
- The matter shall be mentioned on a date to be allocated for compliance and further directions.
Full Case Text
Judgment text and source record
19 paragraphs
Olayo v Olayo (Succession Appeal E007 of 2022) [2024] KEHC 3894 (KLR) (19 April 2024) (Ruling)
Neutral citation: [2024] KEHC 3894 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Appeal E007 of 2022
WM Musyoka, J
April 19, 2024
Between
Camulus Odhiambo Olayo
Appellant
and
George Ochieno Olayo
Respondent
(an appeal arising from orders made in the ruling of Hon. T Madowo, Senior Resident Magistrate, SRM, in Busia CMCSC No. 604 of 2018, of 25th October 2022)
Ruling
1. The Civil Procedure Rules, at Order 42 Rule 13(4)(c), requires that the original trial court records be availed. There is utility for that rule. The High Court exercises a supervisory jurisdiction over the proceedings conducted by a subordinate court, according to Article 165(6) of the Constitution. For effective supervision, the trial records of the subordinate court must be availed for the purpose of determining the appeal. The said record is also critical, for the purpose of authenticating the record of appeal.
2. The trial court record herein has not been availed, and I am, therefore, unable to make a determination.
3. Let the Deputy Registrar call for the original trial court records. I shall mention the matter, on a date that I shall allocate at the delivery of this ruling, for compliance and further directions.
DELIVERED, DATED AND SIGNED IN OPEN COURT AT BUSIA THIS 19THDAY OF APRIL 2024WM MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Wanjala, instructed by Omurwa Advocates, Advocates for the appellant.Mr. Ashioya, instructed by Ashioya & Company, Advocates for the respondent.