[2003] KECA 70 (KLR)
The Court found that the respondents could not be faulted for failing to prosecute the intended appeals because the proceedings from the High Court, which are mandatory for the appeal, had not been availed to them despite their proper application. Since the typed copies of the proceedings were now available, the...
Source-derived case information.
- Citation
- [2003] KECA 70 (KLR)
- Parties
- Applicant: Lilian Wairimu Ngatho; Applicant: Elizabeth Murungari Njoroge; Respondent: Naomi Nduruka; Respondent: Njoroge Njau; Respondent: Legal Representatives of the Estate of Kiruhi Kimondo & Five Others
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 282 of 2002
- Procedural Posture
- Civil Application / Application to Strike Out Notice of Appeal
- Outcome
- applications dismissed
- Legal Topics
- Appeals Procedure, Striking Out Notices, Probate and Administration, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lilian Wairimu Ngatho
Applicant
Elizabeth Murungari Njoroge
Applicant
Naomi Nduruka
Respondent
Njoroge Njau
Respondent
Legal Representatives of the Estate of Kiruhi Kimondo & Five Others
Respondent
Procedural Posture
Civil Application / Application to Strike Out Notice of Appeal
Legal Issues
- 1 Whether the notices of appeal should be struck out for want of prosecution.
- 2 Whether the respondents are to blame for the delay in instituting the intended appeals due to lack of proceedings.
Ratio Decidendi
The Court found that the respondents could not be faulted for failing to prosecute the intended appeals because the proceedings from the High Court, which are mandatory for the appeal, had not been availed to them despite their proper application. Since the typed copies of the proceedings were now available, the Court ordered the respondents to lodge the intended appeals within 30 days, failing which the notices of appeal would stand struck out. The applications to strike out the notices of appeal were therefore dismissed, and costs were awarded to the applicants.
Court Disposition
applications dismissed
Orders
- Respondents to lodge the intended appeals within 30 days of the ruling, failing which the notices of appeal shall stand struck out.
- Respondents to pay costs of KES 5,000 to the applicants within 10 days, in default execution to issue.
Full Case Text
Judgment text and source record
43 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO, TUNOI & O’KUBASU JJ.A)
CIVIL APPLICATION NO. 282 OF 2002
BETWEEN
LILIAN WAIRIMU NGATHO AND
ELIZABETH MURUNGARI NJOROGE .. ……………...…APPLICANTS
AND
NAOMI NDURUKA AND
NJOROGE NJAU ………………….…………..........…RESPONDENTS
Consolidated with
CIVIL APPLICATION NO. 283 OF 2002
BETWEEN
LILIAN WAIRIMU NGATHO AND
ELIZABETH MURUNGARI NJOROGE ….....................…APPLICANTS
AND
LEGAL REPRESENTATIVES OF THE ESTATE
OF KIRUHI KIMONDO & FIVE OTHERS ……….....….RESPONDENTS
(An application to strike out a Notice of appeal from a Judgment
of the High court of Kenya at Nairobi (Lady Justice Rawal) dated
2. 11. 2000)
in
H.SUCC.C. 2616 OF 1999 & 1074 OF 1998)
****************************
RULING OF THE COURT
These two motions have been consolidated for convenient disposal in that both arise out of a ruling delivered on 2nd November, 2000, by Rawal J, and concern the Estate of the late Wanjiku Njau over which the parties are staking rival claims.
By the motions the applicants seek orders to strike out the notices of appeal on the ground that since they were filed on 8th and 9th November, 2000, no steps have been taken to prosecute or take further action in the intended appeals. This fact is not denied by the respondents, but, they aver that in the absence of proceedings for which they properly applied in the manner prescribed by the rules they have been unable to institute the intended appeal.
It is manifestly clear that proceedings of a trial in the superior court are mandatory to mount a valid appeal before this court. It is not in dispute that the proceedings have not been availed to the respondents and therefore they have been unable to move. In the circumstances the respondents cannot be faulted on any omissions on their part. However, we have been informed from the bar that typed copies are now available for collection.
Accordingly, we reject the applications and dismiss them. We order the respondents to lodge the intended appeals within 30 days hereof failure of which the notices of appeal shall stand struck out. The respondents shall pay costs occasioned by these applications to the applicants. We assess them at Shs. 5,000/= and we order that they be paid within 10 days hereof and in default execution to issue.
These are our orders in these applications.
Dated and delivered at Nairobi this 6th day of June, 2003.
R.S.C. OMOLO
……………….
JUDGE OF APPEAL
P.K. TUNOI
………………
JUDGE OF APPEAL
E. O. O’KUBASU
………………..
JUDGE OF APPEAL
I certify that this is a
true copy of the original.
DEPUTY REGISTRAR