[2009] KEHC 1998 (KLR)
The court found that the appeal was heard prematurely because the mandatory requirement for directions under Order XLI rule 8B of the Civil Procedure Rules was not complied with. The filing of a supplementary record of appeal alone did not suffice; parties were required to move the court for directions before the...
Source-derived case information.
- Citation
- [2009] KEHC 1998 (KLR)
- Parties
- Appellant: Marite Enterprises Ltd; Respondent: William Kamiti
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 136 of 2007
- Procedural Posture
- Civil Appeal / Interlocutory Ruling on Procedural Compliance Before Judgment
- Outcome
- Proceedings and written submissions expunged; parties directed to seek directions before further hearing.
- Judges
- MSA Makhandia
- Legal Topics
- Appeal Directions, Supplementary Record of Appeal, Mandatory Procedural Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marite Enterprises Ltd
Appellant
William Kamiti
Respondent
Procedural Posture
Civil Appeal / Interlocutory Ruling on Procedural Compliance Before Judgment
Legal Issues
- 1 Whether the appeal was properly set down for hearing without directions being given as required by the Civil Procedure Rules.
- 2 Whether the proceedings and written submissions should be expunged from the record due to non-compliance with procedural requirements.
Ratio Decidendi
The court found that the appeal was heard prematurely because the mandatory requirement for directions under Order XLI rule 8B of the Civil Procedure Rules was not complied with. The filing of a supplementary record of appeal alone did not suffice; parties were required to move the court for directions before the appeal could be properly set down for hearing. The failure to obtain directions rendered the subsequent proceedings, including the exchange of written submissions and the setting down of the matter for judgment, irregular. As a result, the court expunged the proceedings of 17th July 2009 and the written submissions from the record, and directed the parties to move the court for...
Court Disposition
Proceedings and written submissions expunged; parties directed to seek directions before further hearing.
Orders
- The proceedings of 17th July 2009 are expunged from the record.
- The written submissions filed and exchanged are expunged from the record.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 136 of 2007
MARITE ENTERPRISES LTD........................... APPELLANT
VERSUS
WILLIAM KAMITI ............................................ RESPONDENT
R U L I N G
As I sat down to craft the judgment in this appeal, it occurred to me that the appeal had been heard rather prematurely and without complying fully with the terms of the order I made herein on 8th June 2009. The terms of that order were that the appellant was granted leave to file a supplementary record of appeal. Once that was done, parties would move the court for directions in terms of order XLI rule 86 of the Civil Procedure Rules. It would appear that part of the said order was complied with. That is with regard to the filing of the supplementary record of appeal. However instead of the parties complying with 2nd part of the order aforesaid, they instead proceeded to file and exchange written submissions. The court without being appraised of the fact that directions had yet to be given proceeded to give a date for judgment. Obviously this was
irregular. The requirement for directions to be given by a judge in the appeal before it is set down for hearing is mandatory. This having not been done, it cannot be rightly be said that the appeal was ready for hearing. In the premises I would expunge from the record the proceedings of 17th July 2009 as well as the respective written submissions field and exchanged.
I further direct that the parties move the court as appropriate for directions in terms of order XLI rule 8B aforesaid.
Dated this 29th day of September 2009.
M. S. A. MAKHANDIA
JUDGE