[2009] KEHC 3733 (KLR)
The court found that the appellant had failed to serve the memorandum of appeal on the respondent since filing the appeal in August 2003 and had not taken any steps to prosecute the appeal despite reminders and directions from the court. The appellant's counsel failed to properly withdraw from the case and did not...
Source-derived case information.
- Citation
- [2009] KEHC 3733 (KLR)
- Parties
- Appellant: C.K. Gitau t/a Venus General Merchants; Respondent: Michael Mwangi Kinyuru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 499 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- appeal struck out
- Judges
- GG Okwengu
- Legal Topics
- Abuse of Process, Service of Memorandum of Appeal, Delay in Prosecution, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
C.K. Gitau t/a Venus General Merchants
Appellant
Michael Mwangi Kinyuru
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to serve the memorandum of appeal on the respondent.
- 2 Whether the appellant's inaction constitutes an abuse of the court process.
- 3 Whether the respondent is prejudiced by the continued pendency of the appeal and the stay of execution.
Ratio Decidendi
The court found that the appellant had failed to serve the memorandum of appeal on the respondent since filing the appeal in August 2003 and had not taken any steps to prosecute the appeal despite reminders and directions from the court. The appellant's counsel failed to properly withdraw from the case and did not provide any explanation for the inaction. The court concluded that the appeal was an abuse of the court process, intended only to delay the respondent from enjoying the fruits of the lower court judgment. Consequently, the court allowed the respondent's application and struck out the appeal, awarding costs to the respondent.
Court Disposition
appeal struck out
Orders
- The appeal is struck out.
- Costs of the application and the appeal are awarded to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL APPEAL 499 OF 2003
C.K. GITAU
T/A VENUS GENERAL MERCHANTS………..APPELLANT
VERSUS
MICHAEL MWANGI KINYURU……..……….RESPONDENT
R U L I N G
1. Michael Mwangi Kinyuru, who is the respondent in this appeal, seeks to have the appeal struck out under Section 3 and 3A of the Civil Procedure Act. He contends that the appeal is an abuse of the court process as the appellant C.K. Gitau t/a Venus General Merchants, has never served the respondent with a copy of the memorandum of appeal since the appeal was filed on 7th August, 2003. The appellant maintains that he is being prejudiced by he appeal as there is an order of stay of execution in force in the lower court, based on the pending appeal.
2. The application was served on the appellant but no replying affidavit was filed. Counsel for the appellant indicated to the court on 3rd March, 2009 that he wished to withdraw for lack of instructions. He was given 30 days to do so. However, counsel only filed an application to withdraw three days before the respondent’s application came up again for hearing. Counsel for the appellant did not even serve his application to withdraw on the appellant. The court therefore refused any further application for adjournment and proceeded to hear the respondent’s application to have the appeal struck out.
3. I have carefully considered this application. The court record is clear that since the memorandum of appeal was filed on 7th August, 2003, the appellant has not taken any active step to have the appeal move forward. On 18th June, 2007, a letter was written to the appellant’s counsel requesting him to comply with order XLI Rule 8B(4) (a), (b), (c), (d) and (f) of the Civil Procedure Rules, with regard to filing of the record of appeal, but to date the appellant has not taken any action. No explanation has been given for this failure.
4. In the circumstances, I do concur with the respondent that this appeal is an abuse of the process of the court, as it is only intended to deny the respondent the benefit of the judgment given in his favour by the lower court. I therefore, allow this application and strike out the appeal. I award costs of this application and costs of the appeal to the respondent.
Orders accordingly.
Dated and delivered this 14th day of May, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Kaai for the respondent
Erick – Court clerk