[2006] KEHC 1122 (KLR)
The court found that the appellant was notified of the admission of the appeal but failed to serve the memorandum of appeal on the respondent or his advocate for seven months. This conduct demonstrated a lack of interest in prosecuting the appeal and amounted to an abuse of the court process. Exercising its inherent...
Source-derived case information.
- Citation
- [2006] KEHC 1122 (KLR)
- Parties
- Appellant: Peter Muchiri Kariuki; Respondent: Gilbert Kariuki
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 123 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal
- Outcome
- appeal struck out
- Legal Topics
- Appeal Striking Out, Service of Memorandum, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Peter Muchiri Kariuki
Appellant
Gilbert Kariuki
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to serve the memorandum of appeal on the respondent or his advocate within a reasonable time.
- 2 Whether the appellant's conduct amounts to an abuse of the court process.
Ratio Decidendi
The court found that the appellant was notified of the admission of the appeal but failed to serve the memorandum of appeal on the respondent or his advocate for seven months. This conduct demonstrated a lack of interest in prosecuting the appeal and amounted to an abuse of the court process. Exercising its inherent jurisdiction under Section 3A of the Civil Procedure Act, the court determined that it was fair and just to strike out the appeal to prevent further abuse and delay.
Court Disposition
appeal struck out
Orders
- The appeal is struck out.
- Costs awarded to the applicant (respondent).
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 123 of 1999
PETER MUCHIRI KARIUKI …………….............................…………………. APPELLANT
VERSUS
GILBERT KARIUKI …………...........................…………………………… RESPONDENT
R U L I N G
Gilbert Kariuki the applicant seeks to have the appeal brought against him by Peter Muchiri Kariuki struck out on the grounds that the appellant has failed to serve him or his advocate with the memorandum of appeal 7 months after the appellant was notified of the admission of his appeal.
It is evident from the court record that the appellant’s advocate was notified of the admission of the appeal on the 12th July 2001. A copy of the letter has been duly stamped received by the advocate. The appellant cannot therefore claim that he had no knowledge of the admission of the appeal. The appellant’s lack of interest in the appeal has been demonstrated by the manner in which they have handled this application. I concur with the applicant’s advocate that the applicant lacks interest in this appeal. I find that the applicant is abusing the process of the court by delaying the appeal and it is only fair and just that this court exercises its inherent jurisdiction under Section 3A of the civil Procedure Act to prevent such an abuse. Accordingly I grant the application and I strike out the appeal. Costs to the applicant.
Dated signed and delivered this 18th October 2006
H. M. OKWENGU
JUDGE