[2012] KEHC 2837 (KLR)
The court found that the appeal was incompetent for two reasons: first, the appellant did not seek or obtain leave to appeal as required for orders arising from preliminary objections under Order 43 Rule 2 of the Civil Procedure Rules; second, the appellant failed to file a certified copy of the order appealed...
Source-derived case information.
- Citation
- [2012] KEHC 2837 (KLR)
- Parties
- Appellant: Alex Gichua Mwatha; Respondent: Jeremiah Muriuki Gathimba
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal struck out as incompetent with costs to the respondent.
- Legal Topics
- Locus Standi, Leave to Appeal, Preliminary Objection, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alex Gichua Mwatha
Appellant
Jeremiah Muriuki Gathimba
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appeal was competent in the absence of leave to appeal as required under Order 43 Rule 1 and 2 of the Civil Procedure Rules.
- 2 Whether the failure to file a certified copy of the order appealed against rendered the appeal incompetent.
Ratio Decidendi
The court found that the appeal was incompetent for two reasons: first, the appellant did not seek or obtain leave to appeal as required for orders arising from preliminary objections under Order 43 Rule 2 of the Civil Procedure Rules; second, the appellant failed to file a certified copy of the order appealed against, as mandated by Order 42 Rule 2. Both omissions are fatal to the competence of the appeal. The court relied on binding precedent and statutory provisions to conclude that the appeal had no foundation and must be struck out with costs.
Court Disposition
Appeal struck out as incompetent with costs to the respondent.
Orders
- The appeal is struck out for want of competence.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 39 OF 2005
ALEX GICHUA MWATHA………………….……...……………….…………APPELLANT
VERSUS
JEREMIAH MURIUKI GATHIMBA………….....….……………………….. RESPONDENT
(Being an appeal from the Order of B.A. OJOO Resident Magistrate in Civil Case No. 6 of 2005 at Baricho on 26th May 2005)
J U D G M E N T
The Appeal is against the Order of the Resident Magistrate Baricho on 26th May, 2005 in Civil Case No. 6/2005 in which she struck out the Appellant’s suit for lack of locus standi. He filed six grounds of appeal. Both counsels filed written submissions by consent. I have considered the said submissions.
Mr. Maina Kagio for the Respondent has raised 2 issues about the competence of this appeal. The two issues are:-
1. No leave to appeal was sought hence contravening the provisions of Order 43 Rule 1 of the Civil Procedure Rules.
2. There was no extracted order of the Ruling appealed against.
These two issues should be dealt with first. Under Order 423 Rule 1 of the Civil Procedure Rules are outlined in the orders from which an Appeal lies as a right. Orders arising from Preliminary objections are not among them. They fall under Order 43 Rule 2 of the Civil Procedure Rules where the leave of the Court must be sought. There is no evidence from the record to show that leave to appeal was even sought. And the appeal having been filed without leave has no foundation and must fail.
The record does not contain any extracted order from the Ruling appealed from. Order 42 Rule 2 of the Civil Procedure Rule provides:-
“Where no certified copy of the decree or order appealed against is filed with the Memorandum of Appeal, the appellant shall file such certified copy as soon as possible and in any event within such time as the Court may order and the Court need not consider whether to reject the appeal summarily under Section 79B of the Act until such certified copy is filed.”
This provision stresses the importance of the decree/order which should be certified in forming part of the record. The Court of Appeal held in the case of CHRISTOPHER AJOWI OBIERO VS PATROBA KIRA OKOTH & OTHERS IN CIVIL APPEAL NO. 340/2000 ON 28/11/2002 UR – that:-
“The failure to incorporate a certified copy of the order in the record of appeal renders the appeal incompetent”.
I am also guided by the same finding by Hon. Lady Justice W. Karanja in ANTHONY KANYI MATHENGE VS EPHREM GITARI & ANOTHER – EMBU HCCA NO. 43/2002.
For the two reasons above I find that there is no competent appeal before me. I strike it out with costs.
DELIVERED, SIGNED AND DATED AT EMBU THIS 19TH DAY OF JULY 2012.
H.I. ONG’UDI
JUDGE
In the presence of:-
Mr. Maina Kagio for Respondent
Respondent present
Nancy CC