[2019] KEHC 1975 (KLR)
The court found that the appellant failed to comply with the order issued on 15.7.2019 to file and serve a complete record of appeal within 15 days. There was no evidence of compliance presented at the hearing, and the absence of a complete record of appeal meant the court could not determine the appeal on its...
Source-derived case information.
- Citation
- [2019] KEHC 1975 (KLR)
- Parties
- Appellant: Owala Champingny Makonyango; Respondent: Siaya Wholesalers Ltd
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Non Compliance With Court Orders
- Outcome
- appeal dismissed for non-compliance with court orders
- Judges
- RE Aburili
- Legal Topics
- Appeal Dismissal, Record of Appeal, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Owala Champingny Makonyango
Appellant
Siaya Wholesalers Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Non Compliance With Court Orders
Legal Issues
- 1 Whether the appeal should be dismissed for failure to file and serve a complete record of appeal as ordered by the court.
- 2 Whether the appellant complied with the court's orders issued on 15.7.2019.
Ratio Decidendi
The court found that the appellant failed to comply with the order issued on 15.7.2019 to file and serve a complete record of appeal within 15 days. There was no evidence of compliance presented at the hearing, and the absence of a complete record of appeal meant the court could not determine the appeal on its merits. The court held that compliance with procedural orders is mandatory and, in the absence of such compliance, the only recourse was to dismiss the appeal. The court also ordered the appellant to pay the costs of the appeal and the application dated 20.5.2019 to the respondent.
Court Disposition
appeal dismissed for non-compliance with court orders
Orders
- The appeal is dismissed for non-compliance with the orders of 15.7.2019.
- The appellant shall pay costs of the appeal and of the application dated 20.5.2019 to the respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL NO. 2 OF 2018
OWALA CHAMPINGNY MAKONYANGO........................................APPELLANT
VERSUS
SIAYA WHOLESALERS LTD.........................................................RESPONDENT
(From Original Siaya PMCC 68 of 2011 Ruling Delivered on the 14. 12. 2017 by Hon J. O. Ongondo – Principal Magistrate)
RULING
1. On 15. 7.2019 this court in sustaining this appeal which was to be dismissed for want of a complete record of appeal directed the appellant to file and serve a complete record of appeal upon the Respondent within 15 days from the date of the Ruling, and fixed the date for directions on 17. 9.2019. On the latter date, the Appellant‘s Counsel was not present and the Respondent’s Counsel again sought for dismissal of the appeal for non-compliance with the Orders of 15. 7.2019.
2. The court declined to dismiss the appeal and fixed this date for hearing and directed the Respondent‘s Counsel to serve the Appellant’s counsel. The latter are represented today for hearing and again there is no evidence of compliance with the Orders of 15. 7.2019.
3. That being the case, I have no option but to proceed and dismiss the appeal herein for non-compliance with orders on 15. 7.2019 as there is no complete record of appeal upon which the appeal can be determined as stipulated in Order 42 of the Civil Procedure Rules.
4. The appellant shall pay costs of the appeal and of the application dated 20. 5.2019, to the Respondent.
Dated, Signed and Delivered at Siaya this 20th day of November, 2019.
R.E. ABURILI
JUDGE
In the presence of:
Mr. Ochanyo h/b for Mr. Ashioya Adv. for the Appellant
Miss Ndeda h/b for Mr. Ayosee for the Respondent
CA: Brenda and Modestar