[2019] KEHC 12100 (KLR)
The court found that the appeal had already been admitted and directions for hearing had been given in the presence of both parties' counsel. By the time the application to strike out the memorandum of appeal and dismiss the appeal was heard, the procedural steps complained of had been overtaken by events. The court...
Source-derived case information.
- Citation
- [2019] KEHC 12100 (KLR)
- Parties
- Applicant: John Muchui Lubeta; Respondent: APA Insurance Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 380 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal and Dismiss Appeal
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Appeal Admission, Service of Memorandum, Order 42 Rule 12, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Muchui Lubeta
Applicant
APA Insurance Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal and Dismiss Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to serve the memorandum of appeal within the prescribed period.
- 2 Whether the application to strike out the appeal is overtaken by events due to subsequent compliance and directions given by the court.
Ratio Decidendi
The court found that the appeal had already been admitted and directions for hearing had been given in the presence of both parties' counsel. By the time the application to strike out the memorandum of appeal and dismiss the appeal was heard, the procedural steps complained of had been overtaken by events. The court held that the application was therefore moot and dismissed it, emphasizing that no prejudice had been shown and that substantive justice should prevail over procedural technicalities.
Court Disposition
application dismissed
Orders
- The application dated 28th February, 2019 is dismissed with costs in cause.
- The appeal to be given a hearing date in the registry on priority basis.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL. NO. 380 OF 2017
JOHN MUCHUI LUBETA.........................................................APPLICANT
VERSUS
APA INSURANCE CO. LTD..................................................RESPONDENT
RULING
1. The application dated 28th February, 2019 seeks orders that:
1. That the Memorandum of Appeal lodged in this honourable court on 28th July, 2017 be and is hereby struck out.
2. This appeal hereby be and is hereby dismissed.
3. Cost of this application and be awarded to the Applicant/Respondent.
2. The application is premised on the grounds stated therein and the affidavit in support. The gist of the application is that the appeal herein was filed on 28th July, 2017 but that the Appellant is yet to serve the Respondent with the Memorandum of Appeal and has not yet complied with Order 42 Rule 12 of the Civil Procedure Act.
3. The application is opposed as per the grounds of opposition dated 6th May 2018 which state as follows:
1. No notice as is contemplated under Order 42 rule 12 was served upon the appellant and time cannot run unless and until the notice is served.
2. The appeal was admitted on a date unknown to the appellant but the court did give notices for taking of directions dated 5th February, 2019 meaning it had admitted the appeal. Section 79B cannot, therefore, assist the respondent. It is water under the bridge.
3. Indeed on 1st March, 2019 the Hon. Mr. Justice M Msagha gave directions for the hearing of the appeal.
4. The application is therefore overtaken by events.
5. Order 42 rule 12 does not provide for striking out of an appeal whose memorandum of appeal has not been served within 7 days after admission of an appeal.
6. The record of appeal has been filed and served and directions given. No prejudice has been demonstrated.
7. Courts now do substantive as opposed to procedural dictatorship of yesteryears.
4. I have considered the application, the response to the same and the submissions filed by the counsels for the respective parties. A perusal of the court file reflects that the Appeal was admitted on 4th February, 2019. The Appeal was certified ready to proceed on 1st March, 2019 in the presence of the counsels for the respective parties.
5. By the time the application at hand was fixed for hearing on 24th April, 2019, the same had already been overtaken by events. Consequently, the application is dismissed with costs in cause. The Appeal to be given a hearing date in the registry on priority basis.
Dated, signed and delivered at Nairobi this 10th day of Dec. 2019
B.THURANIRA JADEN
JUDGE