[2015] KEHC 7058 (KLR)
The court found that there was no memorandum of appeal on record, which is a mandatory requirement for the commencement of a civil appeal under Order 42 rule 1(1) of the Civil Procedure Rules. Without a memorandum of appeal, there is no valid appeal in existence. Consequently, the application for stay of execution,...
Source-derived case information.
- Citation
- [2015] KEHC 7058 (KLR)
- Parties
- Appellant: J W B; Respondent: R N K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 23 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application struck out
- Judges
- DN Musyoka
- Legal Topics
- Stay of Execution, Memorandum of Appeal Requirement, Children Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
J W B
Appellant
R N K
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether an application for stay of execution can be entertained in the absence of a filed memorandum of appeal.
- 2 Whether the motion dated 24th April 2014 is competent in law.
Ratio Decidendi
The court found that there was no memorandum of appeal on record, which is a mandatory requirement for the commencement of a civil appeal under Order 42 rule 1(1) of the Civil Procedure Rules. Without a memorandum of appeal, there is no valid appeal in existence. Consequently, the application for stay of execution, which is interlocutory in nature and must be filed within an existing appeal, is incompetent. The motion is not an originating process and, in the absence of a valid appeal, it cannot be sustained. The application is therefore misconceived, incompetent, and an abuse of the court process, warranting its striking out.
Court Disposition
application struck out
Orders
- The Motion dated 24th April 2014 is struck out.
- The respondent shall have the costs of the application.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE REPUBLIC OF KENYA AT NAIROBI
CIVIL APPEAL NO. 23 OF 2014
J W B………………………………….APPELLANT
VERSUS
R N K…………..........……………….RESPONDENT
RULING
The application dated 24th April 2014 in the main seeks stay of execution of orders made on 20th March 2014 in Nairobi Children’s Court Case No. 602 of 2013 pending the hearing and determination of “this appeal”.
I have carefully and anxiously gone through the documents filed in the matter. I have not come across a memorandum of appeal. There is nothing on record to indicate that one was filed herein.
A civil appeal is commenced by way of a memorandum of appeal. The memorandum of appeal is the principal pleading in such appeals. It is the court process which originates a civil appeal.
The law on this is Order 42 rule 1 of the Civil Procedure Rules which states as follows:-
“ (1) Every appeal to the High Court shall been in the form of a memorandum of appeal signed in the same manner as a pleading.
(2) The memorandum of appeal shall set forth concisely and under district heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”
5. By dint Order 42 rule 1(1) of the Civil Procedure Rules there cannot be a valid appeal unless there is on record a memorandum of appeal originating the appeal process.
6 As there is no memorandum of appeal on record in this matter, it is my finding and holding that there is no valid appeal in existence.
7. The Motion dated 24th April 2014, by its design and structure, is meant to be interlocutory, filed within an appeal. It is not originating for it was filed in Civil Appeal No. 23 of 2014. It is therefore not an originating motion.
8. Since there is no appeal on record, the Motion dated 24th April 2014 cannot be interlocutory. It hangs in the air. It has no ground upon which it can be anchored. Without a foundation it cannot have a life of its own. It is dead. It is therefore misconceived, in competent and abuse of the court process.
9. Owing to what I have stated above, the said Motion should suffer the fate of being struck out. I hereby strike the same out. The respondent shall have the costs.
DATED, SIGNED and DELIVERED at NAIROBI this 13th DAY OF February 2015.
W. MUSYOKA
JUDGE