(An appeal arising from the judgment of Hon. DW Mburu, Senior Principal Magistrate, SPM, delivered on 30th July 2021, in Milimani CMCCC No. 5042 of 2019)
1. I am unable to complete writing judgment in this matter, as the record is incomplete.
2. According to the judgment of 30th July 2021, the trial court assessed quantum of damages based on a medico-legal report, by a Dr. TS Mogire, dated 21st August 2020. That report is not in the undated record of appeal filed herein on 28th November 2021. I have also very closely perused the original trial court records, and I have not come across any such report, or any other medico-legal report for that matter.
3. The appeal herein turns only on the issue of assessment of damages, and an appeal around that issue cannot be determined in the absence of such a medico-legal report.
4. Consequently, I hereby return the file to the registry of the Civil Division, High Court of Kenya, at Milimani Nairobi, to be placed before the Presiding Judge, for further directions. The file may be returned to me, for completion of the judgment-writing, once the relevant document has been placed on record.
DELIVERED BY EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 25TH DAY OF MAY 2024
W MUSYOKA
JUDGE
Ms. Veronica, Court Assistant, Milimani, Nairobi.
Mr. Arthur Etyang, Court Assistant, Busia.
Advocates
Mr. Ombati, instructed by Ombati Ong’au & Company, Advocates for the appellants.
Ms. Muriuki, instructed by Mutai Maina Kimeu & Company, Advocates for the respondent.
1. I am unable to complete writing judgment in this matter, as the record is incomplete.
2. According to the judgment of 30th July 2021, the trial court assessed quantum of damages based on a medico-legal report, by a Dr. TS Mogire, dated 21st August 2020. That report is not in the undated record of appeal filed herein on 28th November 2021. I have also very closely perused the original trial court records, and I have not come across any such report, or any other medico-legal report for that matter.
3. The appeal herein turns only on the issue of assessment of damages, and an appeal around that issue cannot be determined in the absence of such a medico-legal report.
4. Consequently, I hereby return the file to the registry of the Civil Division, High Court of Kenya, at Milimani Nairobi, to be placed before the Presiding Judge, for further directions. The file may be returned to me, for completion of the judgment-writing, once the relevant document has been placed on record.
DELIVERED BY EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 25TH DAY OF MAY 2024
W MUSYOKA
JUDGE
Ms. Veronica, Court Assistant, Milimani, Nairobi.
Mr. Arthur Etyang, Court Assistant, Busia.
Advocates
Mr. Ombati, instructed by Ombati Ong’au & Company, Advocates for the appellants.
Ms. Muriuki, instructed by Mutai Maina Kimeu & Company, Advocates for the respondent.