[2013] KEHC 1233 (KLR)
The court found that the application for priority hearing was incompetent because the appellants had not complied with the mandatory requirements of Order 42 Rule 13(4) of the Civil Procedure Rules. Specifically, the record of appeal was incomplete as it lacked the ruling of the magistrate, which is a necessary...
Source-derived case information.
- Citation
- [2013] KEHC 1233 (KLR)
- Parties
- Appellant: Grace Okumu; Appellant: Irene Okumu; Respondent: Paul Fundi Arap Boss
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 39 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection to Application for Priority Hearing
- Outcome
- application struck out; preliminary objection upheld
- Judges
- EO Obaga
- Legal Topics
- Appeal Record Completeness, Preliminary Objection, Order 42 Civil Procedure Rules, Priority Hearing, Dispensation With Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Grace Okumu
Appellant
Irene Okumu
Appellant
Paul Fundi Arap Boss
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection to Application for Priority Hearing
Legal Issues
- 1 Whether the application for priority hearing is competent in the absence of a complete appeal record as required by Order 42 Rule 13(4) of the Civil Procedure Rules.
- 2 Whether the court can dispense with procedural steps and fix the appeal for hearing without compliance with mandatory requirements.
Ratio Decidendi
The court found that the application for priority hearing was incompetent because the appellants had not complied with the mandatory requirements of Order 42 Rule 13(4) of the Civil Procedure Rules. Specifically, the record of appeal was incomplete as it lacked the ruling of the magistrate, which is a necessary document for the appeal to be set down for hearing. The court held that there was no basis to grant the orders sought in the absence of a complete record, and that procedural steps cannot be dispensed with unless the minimum statutory requirements are met. Consequently, the preliminary objection was upheld and the application was struck out with costs to the respondent.
Court Disposition
application struck out; preliminary objection upheld
Orders
- The application dated 30/10/2013 is struck out with costs to the respondent.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. 39 OF 2013
GRACE OKUMU …..............................................................}
IRENE OKUMU …...............................................................} APPELLANTS
VERSUS
PAUL FUNDI ARAP BOSS..................................................... RESPONDENT
R U L I N G
At the hearing of an application dated 30th October, 2013, a Preliminary Objection was taken on behalf of the Respondent on the ground that the application was incompetent, fatally defective and bad in law for non compliance of Order 42 of the Civil Procedure Rules.
Mr. Njuguna for the Respondent argued that the application before Court was premature as the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules have not been complied with. Mr. Njuguna contended that since the Applicants had not complied with the requirements of Order 42, there is no basis upon which the application can be entertained. He asked that the application be struck out.
M/S Arunga for the Applicant opposed the Preliminary Objection arguing that it was necessary to have the orders of the Court directing that the appeal be heard on priority basis before the appeal can be prepared. She argued that there will be no prejudice suffered by the Respondent.
I have considered the submissions by Counsel for the Applicant and the Respondent. The application which is sought to be struck out prays for orders, that the Court be pleased to admit the appeal on priority basis and fix it for hearing on priority basis. The application also seeks dispensation with directions in this matter.
Order 42 of the Civil Procedure Rules provides for an elaborate procedure of filing appeals and the procedure to follow after an appeal has been filed. There are certain steps which the Appellant has to follow. Some of these steps have timelines. In an appropriate case, some of these procedural steps may be dispersed with upon application to Court. For instance after appeal is filed, it is supposed to be placed before the judge for directions under Section 79 B of the Civil Procedure Act. After a judge has refused to reject an appeal under Section 79 B of the Civil Procedure Act, the Registrar is supposed to notify the Appellant of the rejection to summarily dismiss the appeal and the Appellant is then supposed to serve the memorandum of appeal on the Appellant within seven days of the notification by the Registrar. The Appellant is then supposed to have the appeal fixed for directions before a judge after giving notice of not less than 21 days after service of the memorandum of appeal. These are some of the procedural steps which may be dispersed with in an appropriate case.
In the instant application, the Applicant is seeking dispensation with directions and for an order that the appeal be fixed for hearing on priority basis. Section 13 (4) of the Civil procedure Rules provides that a judge should be satisfied that the following documents are on the Court record and that they have been served before an appeal is allowed for hearing that is to say:-
memorandum of appeal
the pleadings
the notes of the Trial Magistrate made at the hearing
the transcript of any official shorthand, typist notes, electronic recording or palantypist notes made at the hearing.
all affidavits, maps and other documents whatsoever put in evidence before the Magistrate.
The judgment,, order or decree appealed from, and where appropriate, the order (if any) giving leave to appeal.
A judge may disperse with the production of any document which is not relevant, other than those specified in paragraph (a), (b) and (f).
I have looked at what is annexed to the Applicant's application. There is no ruling of the Magistrate on record. This means that the record is not complete. There is no basis upon which the prayers can be granted. There is no way a date for hearing of the appeal can be fixed without a complete record being availed. I find that the application herein is incompetent. The Preliminary Objection by the Respondent is upheld. The application dated 30/10/2013 is hereby struck out with costs to the Respondent.
It is so ordered.
Dated, signed and delivered in Open Court on this 7th day of November, 2013.
E. OBAGA
JUDGE
In the presence of
M/S Arunga for the Applicant.
No appearance - Respondent.
Isabella - Court Clerk.
E. OBAGA
JUDGE
07/11/2013