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. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10835/eng@2024-09-20 1
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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 20TH DAY OF SEPTEMBER 2024 W MUSYOKA JUDGE Mr. Arthur Etyang, Court Assistant. Advocates Mr. Otanga, instructed by Bogonko Otanga & Company, Advocates for the appellant. Mr. Ashioya, instructed by Ashioya & Company, Advocates for the respondents. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/10835/eng@2024-09-20 2
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