[2019] KEHC 9174 (KLR)
The court found that the appellant failed to comply with its directions to file the record of appeal and submissions within the stipulated period and was absent on the scheduled hearing date. Pursuant to Order 42 Rule 20 of the Civil Procedure Rules, the court exercised its discretion to dismiss the appeal for...
Source-derived case information.
- Citation
- [2019] KEHC 9174 (KLR)
- Parties
- Appellant: Co-operative Bank of Kenya Limited; Respondent: Josphat Kirigia Aburi
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Appeal Dismissal for Non Compliance
- Outcome
- appeal dismissed for non-compliance with court directions
- Legal Topics
- Appeal Dismissal, Stay of Execution, Non Compliance With Court Orders, Land Sale Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Co-operative Bank of Kenya Limited
Appellant
Josphat Kirigia Aburi
Respondent
Procedural Posture
Civil Appeal / Ruling on Appeal Dismissal for Non Compliance
Legal Issues
- 1 Whether the appellant complied with the court's directions regarding the filing of the record of appeal and submissions.
- 2 Whether the appeal should be dismissed for non-compliance with procedural orders.
Ratio Decidendi
The court found that the appellant failed to comply with its directions to file the record of appeal and submissions within the stipulated period and was absent on the scheduled hearing date. Pursuant to Order 42 Rule 20 of the Civil Procedure Rules, the court exercised its discretion to dismiss the appeal for non-compliance with procedural orders. The court emphasized the importance of expeditious disposal of appeals and adherence to court directions, holding that failure to comply justifies dismissal of the appeal. The lower court file was ordered to be remitted for execution of the original judgment.
Court Disposition
appeal dismissed for non-compliance with court directions
Orders
- The appeal is dismissed with costs to the respondent.
- The lower court file is to be severed from this file and remitted back to the Chief Magistrate's Court Meru for execution of the lower court judgment.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL APPEAL NO. 25 OF 2014
CO-OPERATIVE BANK OF KENYA LIMITED........APPELLANT
VERSUS
JOSPHAT KIRIGIA ABURI......................................RESPONDENT
RULING
1. This appeal was filed on 31st August 2014 against the judgment delivered on 4th July 2014 in Meru CMCC NO. 910 of 2003 at the Chief Magistrates court in which it was decreed that the appellants intended sale of Land Parcel NTIMA/IGOKI/4279 is illegal irregular and void and that the appellant should discharge the plaintiffs Land Parcel No. NYAKI/THUURA/1457 and Land Parcel NTIMA/IGOKI/4279.
2. The appellant vide a Notice of Motion filed on 19. 8.2014 applied for a stay of execution which was granted vide a ruling by this court dated 19th March 2015. However, the stay was premised on that the hearing and determination of the appeal be done within a year of the ruling and the appellant to deposit in court Ksh. 300,000 as security for the stay of execution.
3. It appears there were some difficulties in typing the proceedings from the lower court as the handwriting was difficult to read. Eventually, the proceedings were typed and this court on 28th November 2018 gave directions for the record of appeal to be filed and served within 30 days and the parties to file submissions thereafter. The matter was given a hearing date of 11. 2.2019 in the presence of counsel for the appellant and the respondent.
4. The court in issuing these directions was cognizant of the fact that the matter ought to be dealt with expeditiously. On the date scheduled for hearing, 11. 2.2019, not only was the appellant and its advocate absent, but appellant had also failed to comply with courts directions given earlier on.
5. Pursuant to the provisions of order 42 rule 20 of the civil procedure rules, this appeal is hereby dismissed with costs to the respondent.The lower court file is to be severed from this file and to be remitted back to the Chief magistrates court Meru for the execution of the lower court Judgment.
DATED, SIGNED AND DELIVERED IN OPEN COURT AT MERU THIS DAY OF 27TH MARCH, 2019 IN THE PRESENCE OF:-
C/A: Kananu
Kirimi for appellant
A. Kimathi for respondent
Respondent
HON. LUCY. N. MBUGUA
ELC JUDGE