[2024] KEHC 10559 (KLR)
The court found that the appeal was based on a ruling that did not exist in the trial court record. The only ruling on record was delivered on 3rd April 2023, not 31st March 2023 as pleaded by the appellant. Since the appeal was not anchored on an identifiable or existing order, it was incompetent. The court...
Source-derived case information.
- Citation
- [2024] KEHC 10559 (KLR)
- Parties
- Appellant: Simon Enock Omerikwa Onyango; Respondent: Joseph Ochakala Omakada
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Judgment Date
- 6 September 2024
- Case Number
- Succession Appeal E001 of 2023
- Procedural Posture
- Succession Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- WM Musyoka
- Legal Topics
- Appeal on Non Existent Order, Pleadings Boundaries, Costs Award
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simon Enock Omerikwa Onyango
Appellant
Joseph Ochakala Omakada
Respondent
Procedural Posture
Succession Appeal / Judgment
Legal Issues
- 1 Whether the appeal is competent where it is founded on a non-existent ruling.
- 2 Whether parties are bound by their pleadings regarding the impugned decision.
Ratio Decidendi
The court found that the appeal was based on a ruling that did not exist in the trial court record. The only ruling on record was delivered on 3rd April 2023, not 31st March 2023 as pleaded by the appellant. Since the appeal was not anchored on an identifiable or existing order, it was incompetent. The court emphasized that parties are bound by their pleadings and cannot found an appeal on a non-existent decision. Consequently, the appeal was dismissed, and costs were awarded to the respondent due to their attendance and participation in the proceedings.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed as incompetent.
- Costs are awarded to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
Onyango v Omakada (Succession Appeal E001 of 2023) [2024] KEHC 10559 (KLR) (6 September 2024) (Judgment)
Neutral citation: [2024] KEHC 10559 (KLR)
Republic of Kenya
In the High Court at Busia
Succession Appeal E001 of 2023
WM Musyoka, J
September 6, 2024
Between
Simon Enock Omerikwa Onyango
Appellant
and
Joseph Ochakala Omakada
Respondent
(an appeal arising from orders made in the ruling of Hon. P. Olengo, Senior Principal Magistrate, SPM, in Busia CMCSC No. 579 of 2018, on 31st March 2023))
Judgment
1. The memorandum of appeal herein, dated 26th April 2023, presents an appeal against orders that were made in a ruling that was allegedly delivered on 31st March 2023, by Hon. P Olengo, SPM.
2. The appellant filed a record of appeal, and the original trial court records were availed. I have very carefully perused the said 2 records, and I have been unable to trace the ruling allegedly delivered on 31st March 2023. Nothing happened on that date, according to the record. The only ruling on record was delivered on 3rd April 2023, and I cannot tell whether it was the one that the appellant intended to appeal against.
3. As the appeal herein is founded on a non-existent ruling, and parties are bound by their pleadings, I shall have no hesitation in dismissing the same, as I hereby do. I note that there have been some court attendances on behalf of the respondent. I shall award costs to the respondent. It is so ordered.
DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 6THDAY OF SEPTEMBER 2024. W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Ashioya, instructed by Ashioya & Company, Advocates for the appellant.Mr. Ouma, instructed by BM Ouma & Company, Advocates for the respondent.