[2012] KEHC 2836 (KLR)
The court found that the application to strike out the appeal was premature because the procedural requirements for admission of the appeal under Order 42 Rule 11 of the Civil Procedure Rules and Section 79B of the Civil Procedure Act had not yet been complied with. The appellants had not moved the court for...
Source-derived case information.
- Citation
- [2012] KEHC 2836 (KLR)
- Parties
- Appellant: Charles Mundia; Appellant: James Wairegi Mwangi; Respondent: Andrew Maina Githinji
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 5 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Interlocutory Application to Strike Out Appeal or Compel Prosecution
- Outcome
- Application dismissed as premature; directions issued to appellants to comply with procedural requirements within 30 days.
- Legal Topics
- Appeal Admission, Record of Appeal, Delay in Prosecution, Order 42 Rules, Section 79b Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mundia
Appellant
James Wairegi Mwangi
Appellant
Andrew Maina Githinji
Respondent
Procedural Posture
Civil Appeal / Ruling on Interlocutory Application to Strike Out Appeal or Compel Prosecution
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution due to inaction by the appellants.
- 2 Whether the appellants should be compelled to take steps to prosecute the appeal within a specified period.
Ratio Decidendi
The court found that the application to strike out the appeal was premature because the procedural requirements for admission of the appeal under Order 42 Rule 11 of the Civil Procedure Rules and Section 79B of the Civil Procedure Act had not yet been complied with. The appellants had not moved the court for directions as required, and the appeal had not been admitted. The court therefore declined to strike out the appeal but directed the appellants to move the court for directions within 30 days, emphasizing the appellant's duty to progress the appeal in accordance with the rules.
Court Disposition
Application dismissed as premature; directions issued to appellants to comply with procedural requirements within 30 days.
Orders
- Appellants to move the court for directions under Order 42 Rule 11 of the Civil Procedure Rules and Section 79B of the Civil Procedure Act within 30 days.
- Deputy Registrar to notify the appellants' counsel.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 5 OF 2012
CHARLES MUNDIA ………………..……..…...…………….…………1ST APPELLANT
JAMES WAIREGI MWANGI………..………………………………..….2ND APPELLANT
VERSUS
ANDREW MAINA GITHINJI……….…………….…….….…….………….RESPONDENT
(Being an appeal from Judgment and Decree of M. WACHIRA Chief Magistrate in PMCC No. 144 of 2007 at Embu on 5th July, 2011)
R U L I N G
The Respondent/Applicant has filed his Notice of Motion dated 12/4/2012 under Order 42 Rule 13 of the Civil Procedure Rules seeking the following orders:-
1. Appeal to be struck out with costs.
2. In the alternative and without prejudice in the Court do orders the appellant to file a record of appeal and fix the Appeal for hearing within 30 days.
The application is supported by the affidavit of the Respondent’s Counsel Mr. Kiama. The major complaint is that the Appellants have not taken any steps to prosecute the appeal since its filing on 23/1/2012. And that the Appellants were enjoying a stay of execution.
The Counsel for the Appellants/Respondents was served with this Notice of Motion and the hearing notice. He did not file a replying affidavit nor attend the court on 16/6/2012 when the matter was for hearing.
The record shows that though the Respondent/Applicant may have been served with the memorandum of appeal, Order 42 Rule 11 of the Civil Procedure Rules has not been complied with. The Appeal has not been admitted as required under Section 79B of the Civil Procedure Act. It is the duty of an Appellant to cause the appeal to be placed before the Judge for admission. The Memorandum of Appeal is served after the admission of the appeal and thereafter other processes follow.
I understand the Respondent/Applicant’s anxiety but I find the application to be premature. I hereby direct the Appellants to move the Court for directions under Order 42 Rule 11 of the Civil Procedure Rules and Section 79B of the Civil Procedure Act. This should be done within 30 days. The Deputy Registrar to notify the Appellants Counsel.
Costs in cause.
DELIVERED, SIGNED AND DATED AT EMBU THIS 18TH DAY OF JULY 2012.
H.I. ONG’UDI
JUDGE
In the presence of:-
Mr. Mungai for Kiama for Respondent
Njue CC