[2022] KEHC 3172 (KLR)
The memorandum of appeal was filed beyond the statutory 30-day period stipulated under Section 79G of the Civil Procedure Act. The appellants did not seek or obtain an order admitting the appeal out of time. In the absence of such leave, there was no valid appeal before the court. Consequently, any application...
Source-derived case information.
- Citation
- [2022] KEHC 3172 (KLR)
- Parties
- Appellant: Susan Nduta Mwaura; Appellant: Rurunga Mwangi Mwaura; Respondent: Anthony Mwaura Kambo; Respondent: Judy Njeri Kambo; Respondent: Hannah Njeri Njuguna
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 103 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Competency of Appeal
- Outcome
- Application struck out with costs; no valid appeal before the court.
- Judges
- MM Kasango
- Legal Topics
- Appeal Out of Time, Admission of Appeal, Section 79g Civil Procedure Act
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Susan Nduta Mwaura
Appellant
Rurunga Mwangi Mwaura
Appellant
Anthony Mwaura Kambo
Respondent
Judy Njeri Kambo
Respondent
Hannah Njeri Njuguna
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Competency of Appeal
Legal Issues
- 1 Whether the appeal was filed within the statutory period prescribed by Section 79G of the Civil Procedure Act.
- 2 Whether the appellants sought and obtained leave to file the appeal out of time.
- 3 Whether the application dated 26th October, 2020 could be sustained in the absence of a valid appeal.
Ratio Decidendi
The memorandum of appeal was filed beyond the statutory 30-day period stipulated under Section 79G of the Civil Procedure Act. The appellants did not seek or obtain an order admitting the appeal out of time. In the absence of such leave, there was no valid appeal before the court. Consequently, any application premised on the existence of a valid appeal, including the application dated 26th October, 2020, was incompetent and could not be granted. The court therefore struck out the application with costs.
Court Disposition
Application struck out with costs; no valid appeal before the court.
Orders
- The summons dated 26th October, 2020 is struck out with costs.
Full Case Text
Judgment text and source record
25 paragraphs
Mwaura & another v Kambo & 2 others (Civil Appeal 103 of 2020) [2022] KEHC 3172 (KLR) (16 June 2022) (Ruling)
Neutral citation: [2022] KEHC 3172 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal 103 of 2020
MM Kasango, J
June 16, 2022
Between
Susan Nduta Mwaura
1st Appellant
Rurunga Mwangi Mwaura
2nd Appellant
and
Anthony Mwaura Kambo
1st Respondent
Judy Njeri Kambo
2nd Respondent
Hannah Njeri Njuguna
3rd Respondent
(An appeal from the Ruling of the Senior Resident Magistrate’s Court at Gatundu (Hon. H.M. Nganga, SRM) dated 8th April, 2020 in Succession Case No. 230 of 2017 consolidated with Succession Case No. 231 of 2017)
Ruling
1. This is an appeal against the decision of Senior Resident Magistrate’s Court. The decision is of April 8, 2020. The memorandum of Appeal was filed before this Court on August 21, 2020. Without any stretch of imagination, it becomes very clear that the memorandum of appeal was filed beyond 30 days from the date of Ruling, the subject of this Appeal. This was in contravention of Section 79G of the Civil Procedure Act. The appellant ought to have sought an order to admit the appeal out of time. I cannot see such an order. It follows that until that order is granted, there is no valid appeal on record. It further follows that the application filed by the appellants dated October 26, 2020 cannot be granted since it is founded on non-existent appeal.
2. It is because of the above that the summons dated 26th October, 2020 is struck out with costs.
3. Orders accordingly.
RULING DATED AND DELIVERED AT KIAMBU THIS 16THDAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor 1st Appellant : - No appearanceFor 2nd Appellant: - Miss Kiarie holding brief for Mr. Ndungu MwauraFor 1st and 2nd Respondents :- Ms. Muritu3rd Respondent : - Present in personRULING delivered virtually.MARY KASANGOJUDGE