[2019] KEHC 10102 (KLR)

[2019] KEHC 10102 (KLR)

The court held that the Civil Procedure Rules do not provide for the striking out of appeals on the grounds of being scandalous, frivolous, vexatious, or an abuse of court process. Such provisions apply only to suits, not to appeals. Once an appeal is properly lodged and admitted, it is available for determination by the appellate court, which is mandated to re-examine the evidence and reach its own conclusions. The only summary procedure available for disposing of an appeal is for want of prosecution, as provided under Order 41 rule 31. Therefore, the application to strike out the appeal lacked legal basis and was dismissed with costs.

Citation
[2019] KEHC 10102 (KLR)
Parties
Appellant: CKO; Respondent: JMO
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
15 February 2019
Case Number
Civil Appeal 100 of 2016
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Outcome
application dismissed with costs
Judges
DN Musyoka, AN Ongeri
Legal Topics
Striking Out of Appeal, Abuse of Court Process, Dissolution of Marriage, Maintenance Orders
Source Language
English
Civil Procedure Family and Children Striking Out of Appeal Abuse of Court Process Dissolution of Marriage Maintenance Orders

Case Brief

Summary, issues, holding and outcome

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Parties

CKO

Appellant

JMO

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Strike Out Appeal

Legal Issues

  1. 1 Whether the Memorandum of Appeal should be struck out as scandalous, frivolous, and an abuse of court process.
  2. 2 Whether the Civil Procedure Rules provide for striking out of appeals on the grounds advanced.

Ratio Decidendi

The court held that the Civil Procedure Rules do not provide for the striking out of appeals on the grounds of being scandalous, frivolous, vexatious, or an abuse of court process. Such provisions apply only to suits, not to appeals. Once an appeal is properly lodged and admitted, it is available for determination by the appellate court, which is mandated to re-examine the evidence and reach its own conclusions. The only summary procedure available for disposing of an appeal is for want of prosecution, as provided under Order 41 rule 31. Therefore, the application to strike out the appeal lacked legal basis and was dismissed with costs.

Court Disposition

application dismissed with costs

Orders

  • The application dated 30th November 2017 is dismissed with costs.