[1996] KECA 57 (KLR)
The Court of Appeal found that the High Court did not comply with the mandatory provisions of section 79B of the Civil Procedure Act and rule 8B(1) of Order XLI of the Civil Procedure Rules when summarily rejecting the appellants' appeal. The absence of serious opposition from the respondent further supported the...
Source-derived case information.
- Citation
- [1996] KECA 57 (KLR)
- Parties
- Appellant: Julius Kithinji Nkanata; Appellant: Gerald Gikunda Nkanata; Respondent: M'Nkanata M'Mutungi
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 216 of 1995
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed
- Judges
- JE Gicheru, RO Kwach
- Legal Topics
- Summary Rejection of Appeals, Procedural Compliance, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Kithinji Nkanata
Appellant
Gerald Gikunda Nkanata
Appellant
M'Nkanata M'Mutungi
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the High Court complied with section 79B of the Civil Procedure Act regarding summary rejection of appeals.
- 2 Whether rule 8B(1) of Order XLI of the Civil Procedure Rules was followed by the superior court.
Ratio Decidendi
The Court of Appeal found that the High Court did not comply with the mandatory provisions of section 79B of the Civil Procedure Act and rule 8B(1) of Order XLI of the Civil Procedure Rules when summarily rejecting the appellants' appeal. The absence of serious opposition from the respondent further supported the conclusion that the appeal should be allowed. The failure to adhere to the prescribed procedure rendered the High Court's order unsustainable, necessitating its reversal and the allowance of the appeal with costs to the appellants.
Court Disposition
appeal allowed
Orders
- The appeal is allowed.
- Costs awarded to the appellants.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE COURT OF APPEAL OF KENYA AT NYERI
Civil Appeal 216 of 1995
JULIUS KITHINJI NKANATA.........................................................1ST APPELLANT
GERALD GIKUNDA NKANATA......................................................2ND APPELLANT
AND
M’NKANATA M’MUTUNGI...................................................................RESPONDENT
(Appeal from the Order/ Ruling of the High Court of Kenya at Meru (Mr. Justice R. Kuloba) dated 10th November, 1993
IN
H.C.C.C. NO. 119 OF 1992
***********************
JUDGMENT OF THE COURT
The respondent does not seriously oppose the appellant’s appeal. It would appear to us that the superior court did not comply with section 79 B of the Civil Procedure Act relating to summary rejection of appeals to that court and rule 8B (1) of Order XLI of the Civil Procedure Rules. In the result we think that this appeal must be succeeded. We allow the same with costs to the appellant.
Dated and delivered at Nyeri this 16th May, 1996.
J.E. GICHERU
.......................................
JUDGE OF APPEAL
R.O. KWACH
............................................
JUDGE OF APPEAL
R.S.C. OMOLO
......................................
JUDGE OF APPEAL
I certify that this is a true copy of the original
DEPUTY REGISTRAR