[2005] KEHC 850 (KLR)
The court held that the defects cited by the respondents—namely, the failure to name all parties, the absence of a certified copy of the order or decree appealed from, and improper formatting—did not constitute sufficient grounds for striking out the memorandum of appeal. The naming of parties was consistent with...
Source-derived case information.
- Citation
- [2005] KEHC 850 (KLR)
- Parties
- Appellant: Evans Matindi Muuru; Respondent: Margaret Gachiku & 15 Others
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 102 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Striking Out Pleadings, Memorandum of Appeal Requirements, Land Disputes Tribunal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Matindi Muuru
Appellant
Margaret Gachiku & 15 Others
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal
Legal Issues
- 1 Whether the memorandum of appeal should be struck out for failure to name all parties involved in the appeal.
- 2 Whether the absence of a certified copy of the order or decree appealed from is fatal to the appeal.
- 3 Whether failure to properly indent and number the record of appeal warrants striking out the appeal.
Ratio Decidendi
The court held that the defects cited by the respondents—namely, the failure to name all parties, the absence of a certified copy of the order or decree appealed from, and improper formatting—did not constitute sufficient grounds for striking out the memorandum of appeal. The naming of parties was consistent with the tribunal proceedings and could be raised as a substantive ground of appeal. The provision of certified copies of the tribunal and appeals committee proceedings was adequate for the purposes of the record of appeal under the special jurisdiction of the Land Disputes Tribunal Act. Formatting issues could be rectified at the directions stage. Accordingly, the application to...
Court Disposition
application dismissed with costs
Orders
- The application dated 29th March 2005 is dismissed with costs.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Appeal 102 of 2002
EVANS MATINDI MUURU …………………………………………… APPELLANT VERSUS MARGARET GACHIKU & 15 OTHERS ……………….………… RESPONDENTS
(Appeal from the Award of the Provincial Land Disputes Appeal Committee Central Province in Appeal No. Kiambu 111/99)
R U L I N G
By a notice of motion brought under section 3A of the Civil Procedure Act and Order XLI rule 28 of the Civil Procedure Rules, the Respondents in this appeal seek to have the memorandum of appeal filed herein struck out on the ground that it is bad in law as it does not contain all the names of the parties involved in the appeal, and that it does not contain a certified copy of the order or decree appealed from, and finally, that it is not numbered in red as required.
I have considered the proceedings of the Tribunal which are subject of this appeal. I do concur with the appellant that the Respondent in those proceedings were described as Margaret Gachiku and others. The failure to adequately name or describe the Respondent can therefore only be taken up as a substantive ground of appeal. It could only have been dealt with as a preliminary issue in the proceedings in the Tribunal.
With regard to the failure to include a certified copy of the order or decree appealed from I concur with the appellant’s advocate that the proceedings in the land Disputes Tribunal and the Provincial land Dispute Appeals Committee operate under special jurisdiction as provided under the Land Disputes Tribunal Act. In the circumstances a certified copy of the proceedings and ruling of the Land Disputes Tribunal and the Provincial Land Disputes Appeals Committee having been provided that is adequate for the purposes of the record of appeal.
While it is true that the record of appeal has not been properly indented, that is an issue that can be dealt with at direction stage before the appeal is certified as fit to proceed to hearing.
I find therefore that there is no sufficient cause for striking out the Memorandum of appeal. The application dated 29th March 2005 is accordingly dismissed with costs.
Dated signed and delivered this 23rd day of November 2005.
H. M. OKWENGU
JUDGE