[2016] KEHC 6450 (KLR)
The court found that the appeal had never been admitted as required by section 79B of the Civil Procedure Act and Order 42 Rule 11 of the Civil Procedure Rules. Without compliance with these procedural requirements, it would be improper and premature for the court to render a determination on the merits of the...
Source-derived case information.
- Citation
- [2016] KEHC 6450 (KLR)
- Parties
- Appellant: Philip Mururi Ndarua; Respondent: Gatemu Housing Society Ltd
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Case 73 of 2013
- Procedural Posture
- Civil Appeal / Preliminary Directions
- Outcome
- Appellant directed to regularize the appeal by complying with procedural requirements; no determination on merits.
- Judges
- JM Mativo
- Legal Topics
- Appeal Admission, Directions Under Order 42, Summary Rejection, Procedural Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Philip Mururi Ndarua
Appellant
Gatemu Housing Society Ltd
Respondent
Procedural Posture
Civil Appeal / Preliminary Directions
Legal Issues
- 1 Whether the appeal could proceed to hearing without compliance with Order 42 Rule 11 Civil Procedure Rules.
- 2 Whether the appeal had been properly admitted under section 79B of the Civil Procedure Act.
Ratio Decidendi
The court found that the appeal had never been admitted as required by section 79B of the Civil Procedure Act and Order 42 Rule 11 of the Civil Procedure Rules. Without compliance with these procedural requirements, it would be improper and premature for the court to render a determination on the merits of the appeal. The court emphasized that the necessary procedural steps must be taken before the appeal can be heard and determined, and any judgment rendered without such compliance would be open to legal challenge.
Court Disposition
Appellant directed to regularize the appeal by complying with procedural requirements; no determination on merits.
Orders
- The appellant is directed to take necessary steps to regularize the position and comply with Order 42 Rule 11 Civil Procedure Rules.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL CASE NO 73 OF 2013
Philip Mururi Ndarua.......................................Appellant
versus
Gatemu Housing Society Ltd………….............Respondent
RULING
On 23 September 2015 I delivered a ruling allowing this Appeal to be reinstated after it had been dismissed for want of prosecution. The parties took a date for the hearing of the appeal on 7th December 2015 and on the said date the matter was listed before me for hearing. On the said date the appellant confirmed that he had filed written submissions while counsel for the Respondent asked for a mention date to confirm that he had filed his submissions. Pursuant thereto, the matter was listed for mention on 16th February 2016 and on the said date the Respondents counsel had not filed submissions. Judgement date was fixed for 10th March 2016.
Unfortunately, when I retired to write the judgement I noted that this appeal has pre-maturely been listed for hearing and certain crucial steps have never been taken. I find this to be unfortunate considering that this appeal was filed on 23rd September 2013 and the appellant only woke up after the appeal was dismissed for want of prosecution by the court as stated above.
Order 42 rule 11 Civil Procedure Rules provides that:-
“Upon filing of the Appeal the Appellant shall within thirty days, cause the matter to be listed before a Judge for directions under section 79B of the Act”.
To date Order 42 Rule 11 Civil Procedure Rules has not been complied with. The directions under Section 79B of the Act would entail the admission or summary rejection of the Appeal. Directions under Order 42 rule 13(1) Civil Procedure Rules cannot be given before admission under section 79B Civil Procedure Act.
In brief this Appeal has never been admitted not withstanding that it was filed on 23rd September 2013. It follows that it would be improper for me to render a determination of the appeal under the above circumstances. Such a judgment, would, in my view be premature and open to legal challenge.
Accordingly, I direct the appellant to take such steps as may be necessary to regularize the position.
Orders accordingly
Dated at Nyeri this 10thday ofMarch2016
John M. Mativo
Judge