[2008] KEHC 3614 (KLR)
The court held that the responsibility to extract and file the lower court's decree lies with the appellant, not the respondent. Despite a previous court order directing extraction of the decree, the appellant had not complied. The court found no merit in the appellant's argument that the respondent should extract...
Source-derived case information.
- Citation
- [2008] KEHC 3614 (KLR)
- Parties
- Appellant: John Mathenge W. Silas Githinji K; Respondent: Isaac Ngatia Ngoro
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 48 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Dismiss Appeal for Want of Decree
- Outcome
- Conditional order granting appellant 14 days to file decree, failing which appeal stands dismissed with costs to respondent.
- Judges
- MM Kasango
- Legal Topics
- Appeal Record Requirements, Dismissal for Non Compliance, Decree Extraction, Court Orders, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Mathenge W. Silas Githinji K
Appellant
Isaac Ngatia Ngoro
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Dismiss Appeal for Want of Decree
Legal Issues
- 1 Whether the appeal should be dismissed for failure to attach the lower court's decree to the record of appeal.
- 2 Who bears the responsibility for extracting and filing the decree in an appeal.
Ratio Decidendi
The court held that the responsibility to extract and file the lower court's decree lies with the appellant, not the respondent. Despite a previous court order directing extraction of the decree, the appellant had not complied. The court found no merit in the appellant's argument that the respondent should extract the decree. To balance fairness and procedural compliance, the court granted the appellant a final opportunity to file the decree within 14 days, failing which the appeal would stand dismissed with costs to the respondent. The costs of the present application were also awarded to the respondent.
Court Disposition
Conditional order granting appellant 14 days to file decree, failing which appeal stands dismissed with costs to respondent.
Orders
- The appellant shall file the lower court's decree within 14 days from the date of the ruling; in default, the appeal stands dismissed with costs to the respondent.
- The costs of the Notice of Motion dated 7th September 2007 are awarded to the respondent in any event.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 48 of 2005
JOHN MATHENGE W. SILAS GITHINJI K……………………... APPELLANT
VERSUS
ISAAC NGATIA NGORO ……………………….…………… RESPONDENTS
RULING
The respondent to the appeal has made an application by Notice of Motion dated 17th September 2007. That application is brought under section 3A of Civil Procedure Act. The respondent seeks the dismissal of this appeal for failure to attach a decree. In the affidavit in support the respondent stated that the Record of Appeal was filed on 27th February 2006. That that Record of Appeal is defective for lack of a decree. That the appellant has failed to pay further court fees to enable the decree to be drawn. According, the matter should be dismissed.
The application was opposed. In the Replying Affidavit the appellant deponed that on 19th June 2006 the court directed the appellant to extract the Lower Court Decree. The appellant further deponed that his advocate has made several correspondences to the respondent’s advocate asking him to extract the decree to no avail. That his advocate further requested the Lower Court to certify a draft decree. The court has so far not certified the same.
It should be noted that on 19th June 2006 the court in entertaining a Chamber Summons dated 27th February 2006 directed that the decree be extracted for the purpose of this appeal. Despite this order the decree had not been extracted. Accordingly, the order that commend itself to this court is that a time limit be given to the appellant to provide that decree. I do not accept the argument by the appellant that is the responsibility of the respondent to extract the decree. The appellant having filed this appeal has a responsibility to extract the decree to be included in the Record of Appeal. According I grant the following orders;-
1. That the appellant do file the Lower Court’s decree within 14 days from this date hereof and in default this appeal stands as dismissed with costs of the same being awarded to the respondent in the appeal.
2. The costs of this Notice of Motion dated 7th September 2007 are awarded to the respondent to the appeal in any event.
Dated and delivered at Nyeri this 22nd day of April 2008.
MARY KASANGO
JUDGE