[2012] KEHC 2820 (KLR)
The court found that the application to strike out the appeal for want of prosecution was premature because the appeal had not yet been admitted by the High Court as required by Order 42 Rule 11 and Section 79B of the Civil Procedure Act. The proper procedure is for the appellants to move the court for directions...
Source-derived case information.
- Citation
- [2012] KEHC 2820 (KLR)
- Parties
- Appellant: Charles Mundia; Appellant: James Wairegi Mwangi; Respondent: Wakuthi John Ndambiri
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 137 of 2011
- Procedural Posture
- Civil Appeal / Interlocutory Application for Striking Out or Directions on Prosecution of Appeal
- Outcome
- Application to strike out the appeal dismissed as premature. Appellants given 30 days to move the court for directions. Costs in the cause.
- Legal Topics
- Appeal Admission, Dismissal for Want of Prosecution, Service of Memorandum, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mundia
Appellant
James Wairegi Mwangi
Appellant
Wakuthi John Ndambiri
Respondent
Procedural Posture
Civil Appeal / Interlocutory Application for Striking Out or Directions on Prosecution of Appeal
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution.
- 2 Whether the application for dismissal was premature given the procedural stage of the appeal.
- 3 Whether the appellants should be directed to move the court for directions under Order 42 Rule 11 and Section 79B of the Civil Procedure Act.
Ratio Decidendi
The court found that the application to strike out the appeal for want of prosecution was premature because the appeal had not yet been admitted by the High Court as required by Order 42 Rule 11 and Section 79B of the Civil Procedure Act. The proper procedure is for the appellants to move the court for directions after admission of the appeal. Therefore, the court declined to strike out the appeal and instead granted the appellants 30 days to move the court for directions. Costs were ordered to be in the cause.
Court Disposition
Application to strike out the appeal dismissed as premature. Appellants given 30 days to move the court for directions. Costs in the cause.
Orders
- Appellants to move the court for directions under Order 42 Rule 11 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
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 137 OF 2011
CHARLES MUNDIA
JAMES WAIREGI MWANGI……..………………………….…..…………APPELLANTS
VERSUS
WAKUTHI JOHN NDAMBIRI…….………….….…………………………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
This is the Notice of Motion dated 12/4/2012 brought under Order 42 Rule 13 of the Civil Procedure Rules for orders that:-
1. The Appeal be struck out with costs.
2. In the alternative and without prejudice to the above the court orders the Appellants to file a record of Appeal and fix it for hearing within the next 30 days.
The application is supported by the affidavit of Mr. Kiama advocate for the Respondent. He depones that he was served with the Memorandum of Appeal on 23/1/2012 (PKK1). No single step had been taken by the Appellants/Respondents to prosecute the appeal.
The Appellant’s counsel was duly served with this Notice of Motion and the hearing notice but he did not file any replying affidavit and neither did he turn up on 19/6/2012 when the matter came for hearing.
I am not quite sure how the Memorandum of Appeal was served on the Respondent/Applicant before the same was admitted by the High Court. Order 42 Rule 11 of the Civil Procedure Rules provides for admission or rejection by the Judge under Section 79B of the Civil Procedure Act Appellant is the one to cause the placement of the appeal for admission.
It is only after admission that the memorandum of appeal is served and then other processes follow. The application for dismissal is therefore premature. I therefore give the Appellants 30 days within which they should move the Court for directions under Order 42 Rule 11 and Section 79B of the Civil Procedure Act.
The Deputy Registrar to notify the Appellant’s counsel.
Cost 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