Asimba v Asimba [2022] KEHC 14022 (KLR)

Asimba v Asimba (Civil Appeal E042 of 2022) [2022] KEHC 14022 (KLR) (12 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14022 (KLR)

Republic of Kenya

In the High Court at Siaya

Civil Appeal E042 of 2022

RE Aburili, J

October 12, 2022

Between

David Otieno Asimba

Appellant

and

Joshua Nondwa Asimba

Respondent

(Being an Appeal from Judgment and order of the Hon. M.O. Wambani, Chief Magistrate in Siaya CM’s Succession Cause No. 78 of 2011 delivered on 18/8/2022)

Ruling

1. The ‘appeal’ was filed on 8/9/2022 by the firm of Mayende & Busiega Advocates for the appellant. It is drawn by the same firm of advocates. However, none of the two copies of Memorandum of appeal filed is signed.

2. It is an established principle of law that failure to sign a pleading is fatal and renders that pleading incapable of being considered. The defect is not curable by an amendment. The cure is to strike the pleading and let the pleader file fresh pleadings as may be permitted by law. I say not curable and add that such pleading cannot be saved by the application of the principles espoused in Article 159(2)(d) of the Constitution.

3. The reasons for my finding above are as follows:1. Order 2 Rule 16 of the Civil Procedure Rules provides that:“Every pleading shall be signed by an advocate, or recognized agent (as defined by Order 9, Rule 2) or by the Party if he sues or defends in person”

4. What is not in dispute is that a pleading is like a bridge. It is an important connection between a litigant and the justice that he or she seeks from court or Tribunal.

5. It is for that reason that Order 2 Rule 16 of the Civil Procedure Rules is framed in mandatory not directory or discretionary form. Signing of pleadings authenticates the document and determines whether the document is valid or genuinely before a court or tribunal.

6. In Regina Kavenya Mutuku & 3 Othersvs United Insurance Co. Ltd[2002]1KLR 250, Ringera J. (as he then was) held that:“An unsigned pleading has no validity in law as it is the signature of the appropriate person on the pleading which authenticates the same and an unauthenticated document is not a pleading of anybody, it is a nullity.”

7. The Court of Appeal had this to say in Atulkumar Maganlal Shahvs Investment & Mortgages Bank Limited and 2 Others CA 13/2001:“where a pleading is not signed the same would be struck out rather than being dismissed. A pleading must be signed either by the advocate or the party himself where he sues or defends in person or by his recognized agent and this is meant to be a voucher that the case is not a mere fiction…..The failure to sign the service copy of the statement of Claim if the original is signed is not fatal...”

8. It matters not that the mistake is that of an advocate. Since the error is not curable by an amendment, the client must bear the consequences of the carelessness of counsel. See John Ongeri Mauria & Othersvs Paul Matundura CA No. Nai 301 of 2003[2004]2EA 163. See also the Court of Appeal decision and observations in Nai. CA 228/2018Kiptoo Arap Korir Salatvs IEBC & Otherswhere the Court of Appeal was confronted with an unsigned pleading. It concluded that where a pleading is not signed, the same should be struck out.

9. This appeal is before me for admission. I am unable to admit the appeal to hearing owing to there being no appeal capable of being admitted as the Memorandum of appeal is unsigned and I have cycled the areas where signatures could have been appended. It is not even dated although failure to date it is curable as the court can deem the date to be the date when the appeal or pleading was filed.

10. Accordingly, I find the Memorandum of appeal filed on 8/9/2022 to be a nullity and it is hereby struck out with no orders as to costs. The Advocate to be notified forthwith. This appeal file is hereby closed.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 12TH DAY OF OCTOBER, 2022R.E. ABURILIJUDGE