[2019] KEHC 1765 (KLR)
The appeal was dismissed because the appellant failed to comply with the court's explicit direction to file and serve a supplementary record of appeal containing the memorandum of appeal, which is a primary and mandatory document for the prosecution of an appeal. The court found that the appellant had not taken any...
Source-derived case information.
- Citation
- [2019] KEHC 1765 (KLR)
- Parties
- Appellant: Fredrick Odongo Otsieno; Respondent: Al Husnain Motors Ltd; Respondent: Kennedy Kadaji Lumwaji
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 22 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Compliance With Court Directions Regarding Filing of Memorandum of Appeal
- Outcome
- appeal dismissed for want of compliance with court directions
- Judges
- RE Aburili
- Legal Topics
- Appeal Record Requirements, Memorandum of Appeal, Dismissal for Non Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Fredrick Odongo Otsieno
Appellant
Al Husnain Motors Ltd
Respondent
Kennedy Kadaji Lumwaji
Respondent
Procedural Posture
Civil Appeal / Ruling on Compliance With Court Directions Regarding Filing of Memorandum of Appeal
Legal Issues
- 1 Whether the appellant complied with the court's direction to file and serve a supplementary record of appeal containing the memorandum of appeal.
- 2 Whether failure to comply with court directions warrants dismissal of the appeal.
Ratio Decidendi
The appeal was dismissed because the appellant failed to comply with the court's explicit direction to file and serve a supplementary record of appeal containing the memorandum of appeal, which is a primary and mandatory document for the prosecution of an appeal. The court found that the appellant had not taken any steps to move the appeal forward since its filing in 2018, and the court had been acting on its own motion to prompt compliance. The absence of the memorandum of appeal rendered the record incomplete and the appeal incompetent. The court concluded that continued inaction by the appellant was an abuse of process and prejudicial to the respondents, justifying dismissal for want...
Court Disposition
appeal dismissed for want of compliance with court directions
Orders
- The appeal is hereby dismissed for want of compliance with directions of the court to file and serve a supplementary record of appeal containing a memorandum of appeal.
- No orders as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT SIAYA
CIVIL APPEAL NO. 22 OF 2018
FREDRICK ODONGO OTSIENO............................................APPELLANT
VERSUS
AL HUSNAIN MOTORS LTD..........................................1ST RESPONDENT
KENNEDY KADAJI LUMWAJI.....................................2ND RESPONDENT
(Arising from the judgment of Ukwala SRMCC No. 1 of 2010 dated 20. 7.2018 before Hon. G. Adhiambo – SRM)
RULING
1. On 11. 11. 2019 the appellant Willis Advocate holding brief for Mr. Musomba Advocate was notified by the Court that the record of Appeal has no Memorandum of Appeal which is the primary document in an appeal, and counsel was directed to file and serve a supplementary record of appeal containing the said Memorandum of Appeal and in default, the appeal shall stand struck out.
2. The matter was slated for mention today to confirm compliance meaning the appellant had until today to file and serve a supplementary record of appeal containing a Memorandum of Appeal, which he has not done.
3. Failure to comply with directions of the court attracts consequences which include dismissal or striking out of pleadings.
4. The Appellant has since filing of this appeal in 2018 not moved the court on any single day. It is the court that has been acting suo moto. He appears not interested in the appeal and only wants to prevent the Respondent form enjoying the fruits of a lawfully obtained judgment. That being the case, I have no option but to proceed and order that this appeal be and is hereby dismissed for want of compliance with directions of the court to compile and file a complete record of appeal incorporating a memorandum of appeal which is a primary document in an appeal.
5. I make no orders as to costs.
6. Orders accordingly.
Dated, Signed and Delivered at Siaya this 19th day of November 2019.
R.E. ABURILI
JUDGE
In the presence of:
Mr. Okello h/b for Mr. Musomba Adv. for the Appellant
N/A for the Respondent
CA: Brenda and Modestar