[2024] KEHC 10835 (KLR)
The court found that the order striking out the appeal was made in error because the appellant had, in fact, obtained leave to appeal out of time, as evidenced by the order in Busia HC Misc. Application No. E023 of 2022. The failure to annex the order to the supporting affidavit did not negate its existence, as it...
Source-derived case information.
- Citation
- [2024] KEHC 10835 (KLR)
- Parties
- Appellant: Roselyne Shibuko Wamukoya; Respondent: Lynett Oloo Mayabi; Respondent: Rodgers Ageri Oyamo
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E040 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Application for Review of Order Striking Out Appeal
- Outcome
- Application for review allowed; order striking out appeal set aside; appeal to be determined on merits.
- Judges
- WM Musyoka
- Legal Topics
- Review of Court Orders, Appeal Out of Time, Leave to Appeal, Error on Face of Record
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Roselyne Shibuko Wamukoya
Appellant
Lynett Oloo Mayabi
Respondent
Rodgers Ageri Oyamo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review of Order Striking Out Appeal
Legal Issues
- 1 Whether the court's order striking out the appeal for being filed out of time without leave was made in error.
- 2 Whether the appellant had in fact obtained leave to appeal out of time, justifying review of the striking out order.
Ratio Decidendi
The court found that the order striking out the appeal was made in error because the appellant had, in fact, obtained leave to appeal out of time, as evidenced by the order in Busia HC Misc. Application No. E023 of 2022. The failure to annex the order to the supporting affidavit did not negate its existence, as it was present in the record of appeal. This constituted an error apparent on the face of the record, justifying review under Order 45 of the Civil Procedure Rules. The court therefore set aside the order striking out the appeal and directed that the appeal be determined on its merits.
Court Disposition
Application for review allowed; order striking out appeal set aside; appeal to be determined on merits.
Orders
- The order made on 19th April 2024 striking out the appeal is wholly set aside.
- The appeal shall be determined on its merits in a judgment to be delivered on 4th October 2024.
Full Case Text
Judgment text and source record
24 paragraphs
Wamukoya v Mayabi & another (Civil Appeal E040 of 2022) [2024] KEHC 10835 (KLR) (20 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10835 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E040 of 2022
WM Musyoka, J
September 20, 2024
Between
Roselyne Shibuko Wamukoya
Appellant
and
Lynett Oloo Mayabi
1st Respondent
Rodgers Ageri Oyamo
2nd Respondent
(an appeal arising from the decision of Hon. L Ambasi, Chief Magistrate, CM, in Busia CMC Misc. Application No. E021 of 2021, of 28th September 2021)
Ruling
1. On 19th April 2024, I struck out the appeal herein, on grounds that the same had been brought outside of the limitation period, without leave of the court.
2. That dismissal provoked the filing of a Motion, dated 2nd May 2024, for review of the said order, of 19th April 2024. The appellant points out that leave to appeal had been obtained, in Busia HC Misc. Application No. E023 of 2022. Copies of the ruling and order in Busia HC Misc. Application No. E023 of 2022 were meant to be annexed to the affidavit, in support of the instant Motion, but they were not. It is argued that the dismissal was, therefore, by mistake.
3. I have not come across a response, by the respondent, to the application.
4. I have perused the record of appeal a fresh. I have noted, from the table of contents, that a copy of the order, made in Busia HC Misc. Application No. E023 of 2022, on 8th November 2022, allowing leave to appeal out of time, is attached, and I have found the same at page 3 of the record of appeal, dated 8th August 2023.
5. In view of paragraph 4 above, I agree with the appellant, that the order, made on 19th April 2024, amounted to an error on the face of the record, on the part of the court. There is a good ground for review of the orders made in the ruling delivered that day.
6. I hereby, therefore, review the said order, with the effect that the said order is hereby wholly set aside, and substituted with an order that the appeal shall be determined, on its merits, in a judgment that shall be delivered on 4th October 2024.
DELIVERED, DATED AND SIGNED IN OPEN COURT, AT BUSIA, THIS 20THDAY OF SEPTEMBER 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Otanga, instructed by Bogonko Otanga & Company, Advocates for the appellant.Mr. Ashioya, instructed by Ashioya & Company, Advocates for the respondents.