[2019] KEHC 1362 (KLR)
The court found that there was no proper record of appeal relating to the original decision being challenged, and that the only record available pertained to a decision made in the course of the appeal itself, not the original suit. The existence of two memoranda of appeal in the same cause was deemed an abuse of...
Source-derived case information.
- Citation
- [2019] KEHC 1362 (KLR)
- Parties
- Appellant: Patel Prabhakar; Respondent: Richard Chacha Imbosa
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 89 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal struck out
- Judges
- DN Musyoka
- Legal Topics
- Abuse of Court Process, Appeal Procedure, Striking Out of Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patel Prabhakar
Appellant
Richard Chacha Imbosa
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was properly before the court given the absence of a record of appeal relating to the original decision.
- 2 Whether the filing of multiple memoranda of appeal in the same cause constitutes an abuse of court process.
- 3 Whether the appeal should be struck out for want of prosecution or procedural irregularities.
Ratio Decidendi
The court found that there was no proper record of appeal relating to the original decision being challenged, and that the only record available pertained to a decision made in the course of the appeal itself, not the original suit. The existence of two memoranda of appeal in the same cause was deemed an abuse of court process. Furthermore, no steps had been taken to prosecute the appeal since 2013, leading the court to presume abandonment. Consequently, the appeal was struck out for procedural irregularities and want of prosecution.
Court Disposition
appeal struck out
Orders
- The appeal herein is struck out.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO. 89 OF 2013
PATEL PRABHAKAR.......................................................................APPELLANT
VERSUS
RICHARD CHACHA IMBOSA.....................................................RESPONDENT
(An appeal arising from the decision of the Hon. Kendagor,in Kakamega PMCCC No. 521 of 2012)
JUDGMENT
1. The appeal herein was initiated through a memorandum of appeal filed herein on 6th August 2013, to challenge a decision that had been made in Kakamega CMCCC No. 521 of 2012, said to have had pitted the appellant against the respondent. I have not seen a record of appeal with respect to the appeal the subject of the memorandum of appeal lodged herein on 6th August 2013 and of even date.
2. During the pendency of the said appeal several applications were filed and determined. There is an application that Dulu J determined on 3rd April 2014, wherein he declined to grant stay of execution of the decree of the trial court. Another ruling was delivered herein on 6th November 2015, by Mrima J, allowing stay of execution of the decree in Kakamega CMCCC No. 521 of 2012, conditioned on deposit of a sum of Kshs. 650, 000. 00 in the joint names of counsel on record, within forty-five days. Lastly, there is a ruling dated 8th March 2018 delivered by Hon. Khapoya, Senior Resident Magistrate (SRM), wherein he dismissed an application dated 6th September 2017, which had sought temporary stay of warrants of arrest.
3. The matter before me can only be described as a litany errors. As stated elsewhere, the appeal herein was filed challenging a decision that had been made in Kakamega CMCCC No. 521 of 2012 by Hon. Kendagor. I have scrupulously ploughed through the record but I have unable to find a record of appeal relating to that decision. What I have seen is a record of appeal relating to a decision made by Hon Khapoya on 8th March 2018, not in Kakamega CMCCC No. 521 of 2012, but in this appeal. It would appear, therefore, that I am being invited to determine an appeal within an appeal, which is odd.
4. The parties appeared before me for directions on 17th September 2019 and confirmed that they had filed written submissions to dispose of the appeal. The only submissions I have on record are from Anwar & Company, advocates for the appellant, and they are submissions on a memorandum of appeal against a decision by the Deputy Registrar dated 8th March 2018. This is a throwback to the appeal within an appeal, which I have referred to in paragraph 3 here above, and which I have stated is an oddity in law. Secondly, the decision on record of that date was by a Senior Resident Magistrate, there is no decision on record by the Deputy Registrar, since the decision the subject of the ill-fated memorandum of appeal was made by a Senior Resident Magistrate. Whether a Senior Resident Magistrate can make orders or deliver rulings in an appeal at the High Court is moot.
5. If a memorandum of appeal was lodged herein, dated 8th August 2018, then the same must have been filed in abuse of court process for there is the memorandum of appeal, dated 6th August 2013, which originated this cause. There cannot possibly be two memoranda of appeal in the same appeal cause. It would mean that the latter memorandum of appeal was filed in abuse of court process and it should not stand. No steps have been taken since 2013 on the present appeal and I shall presume that it has been abandoned.
6. I shall accordingly strike out the appeal herein with no orders as to costs.
DATED, SIGNED and DELIVERED at KAKAMEGA this 11th DAY OF December, 2019.
W. MUSYOKA
JUDGE