[2022] KEHC 13510 (KLR)
The court found that there was no competent appeal on record because only a draft memorandum of appeal had been filed, and the appellants failed to file a proper memorandum within the time ordered by the court. As a result, there was no appeal to dismiss for want of prosecution. The court was persuaded that the...
Source-derived case information.
- Citation
- [2022] KEHC 13510 (KLR)
- Parties
- Appellant: Africa Royal (K) Ltd; Appellant: Fredrick Mbogo Mutua; Respondent: Simon Mbogo Kiriba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 384 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal and Release Deposited Sum
- Outcome
- Application allowed in part; decretal sum released to respondent; no order as to costs.
- Judges
- JN Mulwa
- Legal Topics
- Dismissal for Want of Prosecution, Memorandum of Appeal Requirements, Release of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Africa Royal (K) Ltd
Appellant
Fredrick Mbogo Mutua
Appellant
Simon Mbogo Kiriba
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal and Release Deposited Sum
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to failure to file a competent memorandum of appeal.
- 2 Whether the decretal sum deposited in court should be released to the respondent.
Ratio Decidendi
The court found that there was no competent appeal on record because only a draft memorandum of appeal had been filed, and the appellants failed to file a proper memorandum within the time ordered by the court. As a result, there was no appeal to dismiss for want of prosecution. The court was persuaded that the application to release the decretal sum deposited in court was merited, as there was no valid appeal pending. The sum was therefore ordered to be released to the respondent's advocates for onward transmission to the respondent. No order was made as to costs.
Court Disposition
Application allowed in part; decretal sum released to respondent; no order as to costs.
Orders
- The decretal sum of Kshs 1,009,200 deposited in court on August 4, 2021 by the appellants' advocates Kimondo Gachoka & Co Advocates shall be forthwith released to the respondent’s/appellants advocates, Gakoi Maina & Co Advocates for onward transmission to the respondent, Simon Mbogo Kiriba.
- There shall be no orders as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
Africa Royal (K) Ltd & another v Kiriba (Civil Appeal 384 of 2021) [2022] KEHC 13510 (KLR) (Civ) (20 September 2022) (Ruling)
Neutral citation: [2022] KEHC 13510 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal 384 of 2021
JN Mulwa, J
September 20, 2022
Between
Africa Royal (K) Ltd
1st Appellant
Fredrick Mbogo Mutua
2nd Appellant
and
Simon Mbogo Kiriba
Respondent
Ruling
1. Before the court is an application dated January 19, 2022, brought by the respondent in the appeal, Simon Mbogo Kiriba; under provisions of section 3A of the Civil Procedure Act and order 42 rule 13(1) and 35(1) of the Civil Procedure Rules seeking orders:a.That the court be pleased to dismiss the appellants appeal for want of prosecution for their failure to comply with court orders.b.That the sum of kshs 1,009,200/= deposited in court on August 4, 2021 be released to the respondent/applicants advocates.c.That costs of the application and the appeal be provided for.
2. At the face of the application are the grounds for the application, and further supported by an affidavit sworn by Simon Mbogo Kiriba, the applicant.
3. The respondents/appellants in the appeal have neither filed a response to the application nor submissions as directed by the court on the May 18, 2022 in the presence of their advocates. As such the application is unopposed.
4. I have checked the judiciary e filing portal. I have not seen any memorandum of appeal filed. What is on record, and clearly stated in the ruling dated July 1, 2021 is a “draft memorandum of appeal, from which this appeal as assigned the number. This is well captured by the court in the July 1, 2021 ruling, to the effect that “the draft memorandum of appeal” was received in court on December 30, 2020 when this appeal file was opened. It is this draft memorandum of appeal that was annexed to the application dated December 15, 2020 seeking orders of stay of execution and filing appeal out of time.
5. It is therefore clear that there is no competent appeal on record, as a draft memorandum of appeal cannot be substituted with a memorandum of appeal that ought to have been filed 14 days after the July 1, 2021 as per the court order.
6. To that extend then, I am persuaded that the application dated January 19, 2022 is merited, in terms of prayer No 2. I further add that prayer No 1 falls by the way as there is no appeal on record to warrant a court order for its dismissal for want of prosecution under provisions of the Civil Procedure Rules, and specifically rule 35(1) thereof.
7. Consequently, I make the following orders:-a) That the decretal sum of Kshs 1,009,200/= deposited in court on the August 4, 2021 by the appellants advocates Kimondo Gachoka & Co Advocates be forthwith released to the respondent’s/appellants advocates, Gakoi Maina & Co Advocates for onward transmission to the respondent, Simon Mbogo Kiriba.b) There shall be no orders as to costs.Orders accordingly.
DATED, DELIVERED AND SIGNED AT NAIROBI THIS 20TH DAY OF SEPTEMBER, 2022J. N. MULWAJUDGE