[2006] KEHC 2103 (KLR)
The court found that the appellant had conceded to filing the appeal without obtaining the necessary leave from the subordinate court, as required by the Civil Procedure Rules. Despite being aware of this omission for nearly six months, the appellant took no steps to regularize the position. The court held that the...
Source-derived case information.
- Citation
- [2006] KEHC 2103 (KLR)
- Parties
- Respondent: Nancy Wanjiru Ngugi; Appellant: Duncan Mwenje
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 701 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- Appeal struck out with costs to the respondent.
- Legal Topics
- Leave to Appeal, Setting Aside Ex Parte Judgment, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nancy Wanjiru Ngugi
Respondent
Duncan Mwenje
Appellant
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appellant required leave of court to file the appeal against the decision refusing to set aside ex parte judgment.
- 2 Whether failure to obtain leave rendered the appeal incompetent and liable to be struck out.
Ratio Decidendi
The court found that the appellant had conceded to filing the appeal without obtaining the necessary leave from the subordinate court, as required by the Civil Procedure Rules. Despite being aware of this omission for nearly six months, the appellant took no steps to regularize the position. The court held that the absence of leave rendered the appeal incompetent. Consequently, the respondent's application to strike out the appeal was granted, and the appeal was struck out with costs to the respondent.
Court Disposition
Appeal struck out with costs to the respondent.
Orders
- The application dated 1.12.05 is granted.
- The appeal is struck out with costs to the applicant/respondent (original plaintiff).
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 701 of 2002
(Being an appeal from a Ruling of the Senior Resident Magistrate Court Milimani
Commercial Court Civil case No.5993 of 1996 at Nairobi by Honourable N.A. Owino
(RM) dated 25. 10. 2002 between
NANCY WANJIRU NGUGI ……………………........................................…………. PLAINTIFF
VERSUS
DUNCAN MWENJE ……………………………………................................... RESPONDENT
RULING
1. BACKGROUND OF APPLICATION
1. The original defendant/appellant had been duly served with summons to enter appearance in a road traffic case filed against him but failed to enter appearance nor filed defencne.
2. An expate hearing was heard and judgment entered against the original defendant/appellant. An application was thereafter filed (dated 5. 7.02) seeking of stay of execution and for orders setting aside the exparte judgment.
3. The trial magistrate rejected, on 25. 10. 02, the application to set aside the judgment.
4. The original defendant appealed.
5. When the appeal came for directions on 20. 9.05 before Visram J the advocate for the appellant original defendant stated:-
“I have just realized that I have not obtained leave to file appeal. I do not need leave under order 9 but the application in the lower court was based on other orders also a decision from which would require leave. I need to consider the matter further and pray for adjournment.”
6. The Advocate was granted his adjournment and took no action. The respondent/original plaintiff filed an application for striking out the appeal dated 1. 12. 05. It is this application that is the subject of this ruling.
II: Application
7. The application simply states that the appellant filed an appeal without the leave of the court.
8. The appellant/original defendant and respondent in this application states that no leave was requied where order 9a r 10, II; Order V
r 1 Civil Procedure Rules. Section 3A and 63 of the Civil Procedure Act is made.
II: Finding
9. The advocate for the original defendant/respondent appellant conceded that he field this application without the leave of the subordinate courts.
10. He required to obtain leave and did not do so. No action had been taken for almost 6 months since he discovered he had no leave to file suit.
11. The application of 1. 12. 05 be and is hereby granted. This appeal is duly struck out with costs to the applicant/respondent original plaintiff.
Dated this 18th day of May 2006 at Nairobi.
M.A. ANG’AWA
JUDGE
S.W. Ndirangu & Co. Advocates for the appellant
Meenye & Kirima & Co. Advocates for the respondent