[2013] KEHC 2528 (KLR)
The court held that while some documents were missing from the record of appeal, striking out the appeal for non-compliance with Order 42 Rule 13 would contravene the overriding objectives of the Civil Procedure Act as set out in sections 1A and 1B. The court emphasized that the overriding objective is to ensure...
Source-derived case information.
- Citation
- [2013] KEHC 2528 (KLR)
- Parties
- Appellant: Peter Mulaa Mutunga; Respondent: Rubi Plastics Industries Ltd
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 120 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Preliminary Objection Regarding Record Completeness
- Outcome
- Appellant granted 14 days to comply with Order 42 Rule 13; appeal not struck out.
- Judges
- GO Shikwe
- Legal Topics
- Appeal Record Completeness, Order 42 Rule 13, Overriding Objective, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mulaa Mutunga
Appellant
Rubi Plastics Industries Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Preliminary Objection Regarding Record Completeness
Legal Issues
- 1 Whether the appeal should be struck out for failure to comply with Order 42 Rule 13 of the Civil Procedure Code due to missing documents in the record of appeal.
- 2 Whether striking out the appeal would contravene the overriding objectives of the Civil Procedure Act.
Ratio Decidendi
The court held that while some documents were missing from the record of appeal, striking out the appeal for non-compliance with Order 42 Rule 13 would contravene the overriding objectives of the Civil Procedure Act as set out in sections 1A and 1B. The court emphasized that the overriding objective is to ensure just, expeditious, and proportionate resolution of disputes. Therefore, rather than striking out the appeal, the appellant was granted 14 days to comply with Order 42 Rule 13 by filing the missing documents, thereby balancing procedural requirements with substantive justice.
Court Disposition
Appellant granted 14 days to comply with Order 42 Rule 13; appeal not struck out.
Orders
- The plaintiff is granted 14 days in which to comply with Order 42 Rule 13 of the Civil Procedure Code from the date of this ruling.
Full Case Text
Judgment text and source record
39 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 120 OF 2012
PETER MULAA MUTUNGA................................................. PLAINTIFF
VERSUS
RUBI PLASTICS INDUSTRIES LTD..................................DEFENDANT
RULING
This matter was listed for directions when counsel for Respondent raised several issues principally that it was not ready for directions as there were missing documents including the Judgment order and decree of the lower court.
Proceedings from the 5th day of March, 2008 to 2009 were missing.
The grounds of opposition by the Respondent were similarly missing. It was the contention by the Respondent that the appeal should be struck out for non-conformity with order 42 rule 13 of the Civil Procedure Code which provides,
“(1) on notice to the parties delivered not less than twenty one days after the date of service of the memorandum of appeal, the appellant shall cause the appeal to be listed for giving directions by a Judge in chambers.
(2) Any objection to the jurisdiction of the appellate Court shall be raised before the Judge before he gives directions under this rule,
(3) …......
(4) Before allowing the appeal to go for hearing the Judge shall be satisfied that the following documents are on the Court record and that such of them as are not in the possession of either party have been served on that party, that is to say;
(a) The memorandum of appeal;
(b) The pleadings
(c) The notes of the trial magistrate at the hearing,
(d) The transcript of any official shorthand, typist notes, electronic recording or palantypist notes made at the hearing;
(e) All Affidavits, maps and other documents whatsoever put in evidence before the magistrate;
(f) the Judgment, order or decree appealed from and where appropriate the order (if any) giving leave to appeal”.
It is not seriously contested that some documents could be missing from the record of appeal but what is opposed is the application (orally) for the appeal should be struck out .
I find Counsels argument that the appeal should be struck out for failure to conform to the requirements of order 42 rule 13 to fly on the face of the provisions of section 1A and 1B of the Civil Procedure Act.
Section 1A (1) provides,
“The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious,proportionate and affordable resolution of the Civil disputes governed by the Act”.
1B (1) for the purpose of furthering the overriding objective specified in section 1A the Court shall handle all matters presented before it for the purpose of attaining the following aims -
“(a) the just determination of the proceedings.
(b) The efficient disposal of the business of the Court.
(c) the efficient use of available judicial and administrative resources.”
I am of the considered view that striking out the appeal would be in contravention of the overriding objectives of the Act.
The plaintiff is granted 14 days in which to comply with order 42 rule 13 of the Civil Procedure Code from the date of this ruling.
Ruling dated and delivered this 28th day of August, 2013.
….............
M. MUYA
JUDGE
28TH AUGUST, 2013
In the presence of:-
Counsel for the plaintiff (absent)
Counsel for the Defendant Kinyanjui