Jivraj Raishi & Brothers Ltd v National Bank of

Kenya Ltd & 3 others

Court of Appeal, at Kisumu June 20, 2003

Gicheru CJ, Omolo & Waki JJ A

Civil Application No NAI 46 of 2003 (KSM.6/03)

(Application to strike out the Notice of Appeal from the Ruling and

order of the High Court at Kisumu (Tanui, J) given on the 3rd June, 2002

in HCCC No 146 of 1999)

Civil Practice and Procedure – appeal - limitation of time – failure to file intended appeal on time–– due to miscommunication with the registry – whether notice of appeal should therefore be struck out.

The applicant made the present application to strike out the Notice of Appeal on grounds that the intended appeal had not been filed on time and that the first respondent had failed to pay the requisite fees for the typing and preparation of the record of the proceedings. The first respondent argued that the failure was due to the fact that it had not received the first letter demanding the said fees from the deputy registrar.

Held:

1. The letter was never received by the advocates of the first respondent which cleared them of any default in the matter.

2. It would be singularly unjust to strike out the first respondent’s Notice of Appeal since they had obtained the proceedings, ruling and certificate of delay from the Deputy Registrar.

Application dismissed.

Cases

No cases referred to.

Statutes

Court of Appeal Rules (cap 9 Sub Leg) rules 74, 80, 81, 81(1)

Advocates

Mr David Otieno for the 1st Respondent.

Republic v Limanyang

High Court, at Kitale June 18, 2003

Birech CA

Criminal Review No 2 of 2003

Criminal Practice and Procedure – committal proceedings – by subordinate courts – where grounds for committing accused to trial are insufficient – and subordinate court substitutes the charge – legality thereof.

This case arose from committal proceedings in the subordinate court in which the subordinate court reduced a murder charge to one of manslaughter. The Senior Principal Magistrate of the First Class called for the records of the proceedings pursuant to section 363 (1) of Criminal

Procedure Code for the purpose of having them revised. Having found the proceedings improper the magistrate forwarded the same as per section 362 (2) of the Criminal Procedure Code to High Court with his remarks.

The validity and propriety of the finding of the Senior Resident Magistrate was therefore the subject of examination by the High Court.

Held:

1. If having read the committal document the magistrate considers that there is insufficient evidence to warrant the accused being committed to the High Court he should then act in accordance with the provisions of section 233 (2) of the Criminal Procedure Code and discharge the accused.

2. The reduction of the charge from murder to manslaughter by the Senior Resident Magistrate was wrong in law as she did not have the powers to do so.

Magistrate’s order revised.

Cases

No cases referred to.

Statutes

Criminal Procedure Code (cap 75) sections 232, 232(2), 233, 233(2), 234,

235, 362, 363(1), 363(2)