Nyamburi v Nyamburi [2022] KEHC 9778 (KLR)

Nyamburi v Nyamburi (Civil Appeal E053 of 2021) [2022] KEHC 9778 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9778 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E053 of 2021

KW Kiarie, J

July 19, 2022

Between

Roda Auma Nyamburi

Appellant

and

Washington Olum Nyamburi

Respondent

Judgment

1. Roda Auma Nyamburi, the appellant herein, was the petitioner in Oyugis Principal Magistrate’s SRM Succession Cause No. 213 of 2019. The learned trial magistrate delivered a ruling dated 31st May, 2021.

2. The appellant was aggrieved by the said ruling and filed this appeal. He was represented by the firm of Nyauke & Company Advocates. She raised four grounds of appeal as follows:a.The honorable magistrate conducted the entire proceedings and trial without regard to the rights of the appellant to legal representation by taking proceedings without the presence of the appellant’s advocate when the appellant’s advocate was waiting for a virtual link to be able to address the court.b.The learned trial magistrate opted to adopt a trial by submissions as proposed by the advocate for the respondent without considering that such mode of proceedings required the concurrence from both parties.c.The learned trial magistrate misdirected herself in purporting to rely on a coerced consent from the appellant to conduct proceedings on her own yet the said appellant had an advocate who had neither ceased acting for the appellant nor been replaced by the appellant herself.d.The learned trial magistrate thus misdirected herself on several matters of law and facts and arrived at a wrong decision to dispose of a matter otherwise that should have been heard on oral evidence.

3. The respondent did not file any response to the appeal.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co Ltd [1965] E A 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. When the application for revocation of grant dated 9th September, 2019 came up for hearing on 30th April, 2021, the appellant’s counsel was absent. The date had been taken by consent on 18th February, 2021. No explanation for the absence of the counsel for the appellant was explained then or subsequently.

6. The objector’s counsel proposed to canvass the application by way of written submissions. The court ordered that submission be filed within 21 days.

7. When a party fails to attend court on a hearing date which he/she is aware of, if the court proceeds with the matter, the open recourse is an application to set aside any subsequent orders giving reasons for the absence. This is what the appellant ought to have done and persuade the trial court to vacate the orders made. It is not open to her to criticize the trial court where the non-attendance was not explained.

8. I therefore find that the appeal lacks merit and the same is dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 19TH DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE