[2022] KEELC 14821 (KLR)
The court determined that, although the appellant had failed to comply with procedural requirements and did not attend court as directed, the interests of substantive justice outweighed the technical defaults. The court exercised its discretion to allow the appellant a further seven days to file the memorandum of...
Source-derived case information.
- Citation
- [2022] KEELC 14821 (KLR)
- Parties
- Appellant: Julia Karwirwa Benson; Respondent: Consolidated Bank (K) Ltd; Respondent: Samwel Mwenda Mbogori; Respondent: Muga Auctioneers & General Merchant
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E033 of 2021
- Procedural Posture
- Environment and Land Appeal / Ruling on Application to Strike Out Memorandum of Appeal
- Outcome
- Application to strike out memorandum of appeal declined; appellant granted seven days to file memorandum of appeal.
- Judges
- CK Nzili
- Legal Topics
- Appeal Admission, Dismissal for Non Compliance, Procedural Directives, Striking Out Pleadings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julia Karwirwa Benson
Appellant
Consolidated Bank (K) Ltd
Respondent
Samwel Mwenda Mbogori
Respondent
Muga Auctioneers & General Merchant
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application to Strike Out Memorandum of Appeal
Legal Issues
- 1 Whether the memorandum of appeal should be struck out for non-attendance and non-compliance with court directives.
- 2 Whether the appellant should be granted further time to comply with procedural requirements for admission of the appeal.
Ratio Decidendi
The court determined that, although the appellant had failed to comply with procedural requirements and did not attend court as directed, the interests of substantive justice outweighed the technical defaults. The court exercised its discretion to allow the appellant a further seven days to file the memorandum of appeal, declining to strike out the appeal. The decision was guided by the overriding objective to do justice without undue regard to procedural technicalities, as enshrined in the Appellate Jurisdiction Act and the Constitution. The court considered the potential prejudice to both parties and found that granting a short extension would not unduly prejudice the respondents, while...
Court Disposition
Application to strike out memorandum of appeal declined; appellant granted seven days to file memorandum of appeal.
Orders
- The memorandum of appeal shall be filed within seven days from the date of the ruling.
- The application to strike out the appeal is declined.
Full Case Text
Judgment text and source record
29 paragraphs
Benson v Consolidated Bank (K) Ltd & 2 others (Environment and Land Appeal E033 of 2021) [2022] KEELC 14821 (KLR) (16 November 2022) (Ruling)
Neutral citation: [2022] KEELC 14821 (KLR)
Republic of Kenya
In the Environment and Land Court at Meru
Environment and Land Appeal E033 of 2021
CK Nzili, J
November 16, 2022
Between
Julia Karwirwa Benson
Appellant
and
Consolidated Bank (K) Ltd
1st Respondent
Samwel Mwenda Mbogori
2nd Respondent
Muga Auctioneers & General Merchant
3rd Respondent
(Being an appeal against the ruling of Hon. S. Abuya – SPM in Meru CM ELC No. 71 of 2018 delivered on 18. 12. 2019)
Ruling
1. The court is asked to strike out the memorandum of appeal with costs on both non-attendance and non-compliance with court’s directives.
2. When this matter came up on July 25, 2022, counsel for the appellant told the court the appeal was related to Meru ELC Misc No 26 of 2020 where some orders were issued on April 28, 2022 which the appellant only came to learn about ten days afterwards. The court directed that the matter be mentioned on September 19, 2022 so as to give the appellant time to make the necessary applications to comply with the orders issued on April 28, 2022 said to have a bearing on the instant appeal.
3. Counsel for the appellant failed to appear in court on September 19, 2022 or serve the court with any compliance orders.
4. This appeal is yet to be admitted for hearing under section 79 of the Civil Procedure Act and directions issued under section 79 (b) thereof and order 42 rule 11 & 13 Civil Procedure Rules.
5. The appeal was filed following leave granted on February 18, 2021. The court eventually made an order for the appeal to be filed afresh.
6. Order 42 rule 35 (1) of the Civil Procedure Rules grants powers to the court to dismiss an appeal which has not been listed for hearing within 3 months after directions and or post admission.
7. As indicated above the appellant is yet to comply with procedures prior to admission of the appeal for hearing, for reasons known to the respondents and which were occasioned by the respondents.
8. In Abdirahman Abdi v Safi Petroleum Products Ltd and 6 others (2011) eKLR, a notice of appeal was served on the respondent out of time and without leave of court. The Court of Appeal upon being asked to strike it out observed that the overriding objective in civil litigation was a policy issue which the court invokes to obviate hardship, expense, delay and to focus on substantive justice and that in days long gone ,court were striking out notices of appeal or even an appeal, but with the enactment of sections 3A and 3B of the Appellate Jurisdiction Act and article 159 2 (2) of the Constitution, the position had changed.
9. In my considered view the court has to do justice between the parties without undue regard to technicalities of procedure. By weighing the prejudice that is likely to be suffered by the innocent party against the prejudice to be suffered by the offending party, I exercise my discretion and direct that the memorandum of appeal be filed within 7 days from the date hereof. I decline to strike out the appeal.Orders accordingly
DATED, SIGNED AND DELIVERED VIA MICROSOFT TEAMS/OPEN COURTTHIS 16TH DAY OF NOVEMBER, 2022In presence of:C/A: KananuMiss Wanjiru for 1st & 3rd respondentsHON C K NZILIELC JUDGE