[2008] KEHC 62 (KLR)
The court held that when a party is granted leave to file an appeal out of time on the condition that the memorandum of appeal is filed and served within a specified period, failure to comply with that condition renders the order ineffective and the appeal invalid. The court further held that it has inherent powers...
Source-derived case information.
- Citation
- [2008] KEHC 62 (KLR)
- Parties
- Appellant: Rosalia Wakaguyu Gakurumi; Respondent: Hellen Wakirunda Gakurumi
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 111 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal
- Outcome
- application allowed; memorandum of appeal struck out with costs to the respondent
- Judges
- J Karanja
- Legal Topics
- Striking Out of Pleadings, Non Compliance With Court Orders, Abuse of Court 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
Rosalia Wakaguyu Gakurumi
Appellant
Hellen Wakirunda Gakurumi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal
Legal Issues
- 1 Whether the memorandum of appeal should be struck out for failure to serve within the time stipulated by the court order.
- 2 Whether the court has inherent power to strike out the appeal for non-compliance with its conditional order.
Ratio Decidendi
The court held that when a party is granted leave to file an appeal out of time on the condition that the memorandum of appeal is filed and served within a specified period, failure to comply with that condition renders the order ineffective and the appeal invalid. The court further held that it has inherent powers under Section 3A of the Civil Procedure Act to strike out the memorandum of appeal in such circumstances to prevent abuse of the court process, even if the Civil Procedure Rules do not expressly provide for such a remedy. Since the appellant failed to serve the memorandum of appeal within the 14-day period as ordered, there was no valid appeal on record, and the application to...
Court Disposition
application allowed; memorandum of appeal struck out with costs to the respondent
Orders
- The memorandum of appeal dated and filed on 22/11/2007 is struck out.
- Costs awarded to the applicant/respondent in the appeal.
Full Case Text
Judgment text and source record
11 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT EMBU
Civil Appeal 111 of 2007
ROSALIA WAKAGUYU GAKURUMI…………....………..APPELLANT
VERSUS
HELLEN WAKIRUNDA GAKURUMI………………….RESPONDENT
RULING
The application dated 21/6/2008 is a simple and straight forward one indeed. It is asking the court to strike out the Appellant’s memorandum of Appeal filed on 22/11/2008. The reason given for this is that the court granted leave for the appeal to be filed out of time but gave a condition that the same be filed and served within 14 days of the said order. The appeal was filed on 22/11/2007 but todate the same has never been served by the appellant hence this application.
Counsel for the respondent in the application responded by saying that the application is vexatious and a gross abuse of the court process saying that the relief sought is not available in law. He contends that a Memorandum of Appeal can only be struck out under Order XLVI rule 31 of the Civil Procedure Rules for non-prosecution. That unfortunately is where counsel goes wrong. This court has inherent powers under Section 37 of the Civil Procedure Act to step in to stem or stop an abuse of the court process in instances which are not provided for under the Civil Procedure Rules. That explains why this application is brought under Section 3A Civil Procedure Act. When a court issues orders but gives a condition precedent which must be fulfilled inorder for the said order to be effective, then that condition MUST be fulfilled. If for whatever reason the party granted the order is to comply with the same, then he should come to court and seek review of the condition precedent. If he does not, and he fails to comply with that condition, then the order lapses and ceases to have any effect. For instance, in this case, the Appellant was ordered to file and serve the petition within 14 days. Todate, he has not complied with that condition. In that case, this order ceased to have effect 14 days after 22/11/2007 when the order was issued. There is therefore no valid appeal on record as at now. Counsel for the applicant was therefore in order and within the law to file this application under Section 3 A Civil Procedure Act to have the said appeal struck out. Section 3A is all encompassing and meant to cover such situations in which the offending party wants to take advantage of flouting the law on one hand and on the other claiming that there is not express law to stop him from further offending or infringing the law. The application before me has merit and the same is hereby allowed. The memorandum of appeal dated and filed on 22/11/2007 is hereby struck out with costs to the Applicant/Respondent in the appeal.
W. KARANJA
JUDGE
Delivered, signed and dated at Embu this11th day of March 2008