[2024] KEHC 7488 (KLR)
The court found that the appellants failed to comply with mandatory procedural requirements by not including the judgment and decree of the lower court in the record of appeal, as required by Order 42 Rule 13 of the Civil Procedure Rules. The court also noted the appellants' failure to file submissions as directed....
Source-derived case information.
- Citation
- [2024] KEHC 7488 (KLR)
- Parties
- Appellant: Mwendwa Ndambuki; Appellant: Maxwell Auto Techs Ltd; Respondent: Peter Mutsya Mwanzia; Respondent: another
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E940 of 2022
- Procedural Posture
- Civil Appeal / Ruling on Compliance and Striking Out of Appeal
- Outcome
- Appeal struck out as fatally defective for non-compliance with mandatory procedural requirements.
- Judges
- RC Rutto
- Legal Topics
- Record of Appeal Requirements, Striking Out Appeals, Mandatory Documents, Failure to Prosecute, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwendwa Ndambuki
Appellant
Maxwell Auto Techs Ltd
Appellant
Peter Mutsya Mwanzia
Respondent
another
Respondent
Procedural Posture
Civil Appeal / Ruling on Compliance and Striking Out of Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to file a complete record of appeal as required by law.
- 2 Whether the appellants failed to prosecute the appeal by not filing submissions as directed by the court.
- 3 Whether the respondents are entitled to the release of the deposited decretal sum.
Ratio Decidendi
The court found that the appellants failed to comply with mandatory procedural requirements by not including the judgment and decree of the lower court in the record of appeal, as required by Order 42 Rule 13 of the Civil Procedure Rules. The court also noted the appellants' failure to file submissions as directed. Citing binding precedent, the court held that the absence of these documents rendered the appeal fatally defective. Consequently, the appeal was struck out with costs to the respondents, and the deposited decretal sum was ordered to be released to the respondents.
Court Disposition
Appeal struck out as fatally defective for non-compliance with mandatory procedural requirements.
Orders
- The appeal is struck out with costs to the respondents.
- The decretal sum of Kshs 800,000 deposited as security for the appeal is to be released to the respondents.
Full Case Text
Judgment text and source record
23 paragraphs
Ndambuki & another v Mwanzia & another (Civil Appeal E940 of 2022) [2024] KEHC 7488 (KLR) (Civ) (19 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7488 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E940 of 2022
RC Rutto, J
June 19, 2024
Between
Mwendwa Ndambuki
1st Appellant
Maxwell Auto Techs Ltd
2nd Appellant
and
Peter Mutsya Mwanzia & another
Respondent
Ruling
1. I have perused the court file and note that on 30th April 2024 the parties were directed to file and serve submission within 7 days, regrettably to date the appellants have not complied with this direction on the other hand the respondents have filed their submissions dated 3rd June 2024 effectively the appellant has have failed to prosecute this appeal.
2. I have also taken liberty to peruse the respondent’s submissions and note that the respondents are opposing the appeal on among others grounds that the record of appeal is incomplete where, he states that there are no exhibits no 2, 3, and 8, no submission, no decree and Judgement of the trial court. I have perused the Record of Appeal and not that indeed the same is incomplete. The Record of Appeal does not include the decree and Judgment of the lower court from which the instant appeal emanate.
3. Order 42 Rule 13 of the Civil Procedure Rules makes provision on mandatory documents that must from part of the Record of Appeal and this includes the Judgement and decree. It has been around 1 year and 9 months since this appeal was filed and yet the appellant has not complied with the mandatory requirements.
4. I make reference to the case of Chege Vs Suleiman (1988) eKLR as well as the case of Emmanuel Ngade Nyoka Vs Kitheka Mutisya Ngata (2017) eKLR all which emphasize on the need to have a complete Record of Appeal.
5. In the Chege case the court held that an appeal was totally detective if it failed to have a decree. Guided by the above holding I proceed to find that this appeal is totally defective and proceed to strike it out with costs to the Respondents orders accordingly.
RHODA RUTTOJUDGEDELIVERED, DATED AND SIGNED ON 19TH THIS DAY OF JUNE 2024 AT NAIROBI.Amutala: There was a decretal sum of Kshs 800,000 was deposited as security for the appeal, I apply that the same be released to the respondent pursuant to the orders of the court.CourtThe decretal amount of Kshs 800,000 being held by the court be released to the respondents.RHODA RUTTOJUDGE