[2008] KEHC 2433 (KLR)
The court found that the application for dismissal for want of prosecution was procedurally defective because only the Registrar can initiate such dismissal under Order XLI Rule 31(2) of the Civil Procedure Rules. The respondents could not usurp this function. On the issue of capacity, the court held that this was a...
Source-derived case information.
- Citation
- [2008] KEHC 2433 (KLR)
- Parties
- Appellant: Peoples Party of Kenya; Respondent: Mary Waithira Ndung’u; Respondent: John Karanja; Respondent: Ali Aden; Respondent: Robert Mugo; Respondent: The Town Clerk, Municipal Council of Limuru
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 250 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal And/or Strike Out Memorandum of Appeal
- Outcome
- Appeal struck out as incompetent; costs awarded to respondents against James Gacheru Kariuki.
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Capacity to Sue, Striking Out Memorandum of Appeal, Unqualified Person Filing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peoples Party of Kenya
Appellant
Mary Waithira Ndung’u
Respondent
John Karanja
Respondent
Ali Aden
Respondent
Robert Mugo
Respondent
The Town Clerk, Municipal Council of Limuru
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Dismiss Appeal And/or Strike Out Memorandum of Appeal
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI Rule 31(2) of the Civil Procedure Rules.
- 2 Whether the memorandum of appeal should be struck out for being incurably defective and/or filed by an unqualified person.
- 3 Whether the appellant had capacity to litigate in its own name.
Ratio Decidendi
The court found that the application for dismissal for want of prosecution was procedurally defective because only the Registrar can initiate such dismissal under Order XLI Rule 31(2) of the Civil Procedure Rules. The respondents could not usurp this function. On the issue of capacity, the court held that this was a matter for the trial court and not for determination at the appellate stage. However, the court determined that the memorandum of appeal was incompetent because it was filed by James Gacheru Kariuki, who was neither an advocate nor a party to the suit, thus contravening Section 34 of the Advocates Act. Consequently, the appeal was struck out and costs awarded to the...
Court Disposition
Appeal struck out as incompetent; costs awarded to respondents against James Gacheru Kariuki.
Orders
- The memorandum of appeal is struck out.
- Costs awarded to the respondents to be paid by James Gacheru Kariuki.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 250 of 2006
PEOPLES PARTY OF KENYA..………………..APPELLANT
VERSUS
MARY WAITHIRA NDUNG’U…...………1ST RESPONDENT
JOHN KARANJA…………………….…….2ND RESPONDENT
ALI ADEN……..………………………….3RD RRESPONDENT
ROBERT MUGO………………….………..4TH RESPONDENT
THE TOWN CLERK,MUNICIPAL
COUNCIL OF LIMURU…………….…….5TH RESPONDENT
R U L I N G
By a notice of motion dated 16th July, 2007, the respondents have moved this court under Order XLI Rule 31(2), Order L Rule 1(2) & (3), of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, seeking to have the appeal filed herein dismissed for want of prosecution. In the alternative the respondents seek to have the memorandum of appeal dated 25th April, 2006 struck out for being incurably defective. The respondents seek to have the original file in respect of Limuru SRMCC No. 125 of 2005 transferred back to the lower court to enable them pursue the costs awarded to them by the lower court.
With regard to the issue of dismissal of the suit for want of prosecution, under Order XLI Rule 31(2) of the Civil Procedure Rules, the process of dismissal of a suit for want of prosecution is initiated by the Registrar of the High Court by sending appropriate notices to the parties and listing the matter before a judge. In this case, no notices have been sent to the parties by the Registrar. The respondent cannot usurp the powers of the Registrar under Order XLI Rule 31(2) of the Civil Procedure Rules by purporting to move the court.
To this extent the application is defective. The respondents must enlist the cooperation of the Registrar to invoke Order XLI Rule 31(2) of the Civil Procedure Rules.
I have considered the submission that the appeal herein is defective and should be struck out as it was filed by a body having no capacity to litigate in its own name. Nonetheless, it is evident from the record of the lower court that the suit in the lower court was filed by the same party who has filed this appeal. The issue of the capacity of the appellant as a litigant has been raised in the pleadings but has not been determined in the lower court, and therefore is an issue which cannot be dealt with by this court at this stage. Indeed, the two cases cited by the respondents’ advocates i.e.
(i) HCCC No.2824 of 1997 (OS) Jane Nyambura Joshua vs Apostolic Faith Church.
(ii) HCCC No. 529 of 2004 Savana Jua Kali Association (suing through its chairperson) Anne Khasoa vs Councillor Amos Ngata & 2 Others,
are distinguishable as they did not relate to an appeal, but were both cases in which the issue of the capacity of the litigant was being dealt with by the court as a court of first instance.
With regard to the contention that the memorandum of appeal was lodged by an unqualified person, I am satisfied that there is substance in this contention. James Gacheru Kariuki who is indicated as having drawn and filed the appeal, has not filed the appeal as an advocate nor is he a party to the suit. He is not therefore a qualified person and has contravened Section 34 of the Advocates Act in filing the appeal. I therefore find that the appeal is incompetent having been filed by an unqualified person. For this reason, I order that the memorandum of appeal be struck out. I award costs to the respondents to be paid by James Gacheru Kariuki.
Orders accordingly.
Dated and delivered this 10th day of June, 2008
H. M. OKWENGU
JUDGE