[2010] KEHC 211 (KLR)
The appeal was dismissed on the grounds that it was incompetent due to the appellant's failure to extract and annex the order or decree appealed from, as required by law. Additionally, the appellant failed to seek leave to appeal as mandated under Order XLII of the Civil Procedure Rules. The application giving rise...
Source-derived case information.
- Citation
- [2010] KEHC 211 (KLR)
- Parties
- Appellant: Ezekiel Mbiti Waweru; Respondent: Joseph Nyaga Waweru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 69 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Appeal
- Outcome
- appeal dismissed
- Judges
- J Karanja
- Legal Topics
- Appeals Procedure, Leave to Appeal, Extraction of Decree, Uncontested Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Mbiti Waweru
Appellant
Joseph Nyaga Waweru
Respondent
Procedural Posture
Civil Appeal / Ruling on Appeal
Legal Issues
- 1 Whether the appeal is competent in the absence of an extracted and annexed order or decree.
- 2 Whether leave to appeal was required and obtained under Order XLII of the Civil Procedure Rules.
- 3 Whether the trial magistrate erred in allowing the application when it was uncontested.
Ratio Decidendi
The appeal was dismissed on the grounds that it was incompetent due to the appellant's failure to extract and annex the order or decree appealed from, as required by law. Additionally, the appellant failed to seek leave to appeal as mandated under Order XLII of the Civil Procedure Rules. The application giving rise to the ruling was uncontested, and the deponments therein were deemed admitted. The tribunal award had already been entered as a judgment of the court and was enforceable, with no challenge to its validity before the court. The trial magistrate acted within the law in allowing the application, and there was no basis for the appeal.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
- The appellant shall bear the costs of the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 69 OF 2005
EZEKIEL MBITI WAWERU...............................................................................APPELLLANT
VERSUS
JOSEPH NYAGA WAWERU...........................................................RESPONDENT
R U L I N G
The Appeal herein is against a Ruling of the Honorable Okato Senior Resident Magistrate Kerugoya dated 3. 11. 05. I have considered the written submissions by both counsel herein. I have also carefully perused the record of the trial court and the relevant law. I will be very precise in this ruling. There is no competent Appeal before me for the following reasons.
Firstly, as rightly submitted by counsel for the Respondent, the order or decrees Appealed from was not at any time extracted and annexed to the memorandum of Appeal or filed before the Appeal was heard, as required by law. I would have struck out the Appeal on that ground only.
Secondly, the Application giving rise to the ruling appealed against does not attract an Appeal as a matter of right under Order XLII of the Civil Procedure Rules. It was necessary for the appellant to seek the leave of the trial magistrate in the first instance before filing this Appeal.
Thirdly, even if the court was to assume that the appeal was properly filed, the said Application was not contested although the same was properly served and the Appellant was even in court when it was heard. Any deponment that is not rebutted or controverted by way of a replying affidavit is deemed to have been admitted.
(See Civil Application No. 78 of 1990 Touring Cars K (Ltd) & Another Vs Ashok Kumar (un-rep)
The learned trial magistrate was therefore in order in allowing the application.
Finally, the award of the Tribunal had already been entered as a judgment of the court. The same had not been quashed or Appealed against. It was therefore a regular judgment of the court which was enforced by the court. The learned trial magistrate could not decline to allow the application on grounds that the award had been arrived at without jurisdiction. That was not a matter before him. Indeed he had no capacity to make such an order.
For these reasons, I find and hold that the Appeal herein lacks merit. I therefore dismiss the same with orders that the Appellant bears the costs of the appeal.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this 23rd day of November 2010
In presence of:- Mr. Kahara for both counsel.