Grace Okumu & Irene Okumu v Paul Fundi Arap Boss [2013] KEHC 1233 (KLR) | Appeal Record Completeness | Esheria

Grace Okumu & Irene Okumu v Paul Fundi Arap Boss [2013] KEHC 1233 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KITALE

CIVIL APPEAL NO. 39 OF 2013

GRACE OKUMU …..............................................................}

IRENE OKUMU …...............................................................}   APPELLANTS

VERSUS

PAUL FUNDI ARAP BOSS..................................................... RESPONDENT

R U L I N G

At the hearing of an application dated 30th October, 2013, a Preliminary Objection was taken on behalf of the Respondent on the ground that the application was incompetent, fatally defective and bad in law for non compliance of Order 42 of the Civil Procedure Rules.

Mr. Njuguna for the Respondent argued that the application before Court was premature as the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules have not been complied with.  Mr. Njuguna contended that since the Applicants had not complied with the requirements of Order 42, there is no basis upon which the application can be entertained.  He asked that the application be struck out.

M/S Arunga for the Applicant opposed the Preliminary Objection arguing that it was necessary to have the orders of the Court directing that the appeal be heard on priority basis before the appeal can be prepared.  She argued that there will be no prejudice suffered by the Respondent.

I have considered the submissions by Counsel for the Applicant and the Respondent.  The application which is sought to be struck out prays for orders, that the Court be pleased to admit the appeal on priority basis and fix it for hearing on priority basis.  The application also seeks dispensation with directions in this matter.

Order 42 of the Civil Procedure Rules provides for an elaborate procedure of filing appeals and the procedure to follow after an appeal has been filed.  There are certain steps which the Appellant has to follow.  Some of these steps have timelines.  In an appropriate case, some of these procedural steps may be dispersed with upon application to Court.  For instance after appeal is filed, it is supposed to be placed before the judge for directions under Section 79 B of the Civil Procedure Act.  After a judge has refused to reject an appeal under Section 79 B of the Civil Procedure Act, the Registrar is supposed to notify the Appellant of the rejection to summarily dismiss the appeal and the Appellant is then supposed to serve the memorandum of appeal on the Appellant within seven days of the notification by the Registrar.  The Appellant is then supposed to have the appeal fixed for directions before a judge after giving notice of not less than 21 days after service of the memorandum of appeal.  These are some of the procedural steps which may be dispersed with in an appropriate case.

In the instant application, the Applicant is seeking dispensation with directions and for an order that the appeal be fixed for hearing on priority basis.  Section 13 (4) of the Civil procedure Rules provides that a judge should be satisfied that the following documents are on the Court record and that they have been served before an appeal is allowed for hearing that is to say:-

memorandum of appeal

the pleadings

the notes of the Trial Magistrate made at the hearing

the transcript of any official shorthand, typist notes, electronic recording or palantypist notes made at the hearing.

all affidavits, maps and other documents whatsoever put in evidence before the Magistrate.

The judgment,, order or decree appealed from, and where appropriate, the order (if any) giving leave to appeal.

A judge may disperse with the production of any document which is not relevant, other than those specified in paragraph (a), (b) and (f).

I have looked at what is annexed to the Applicant's application.  There is no ruling of the Magistrate on record.  This means that the record is not complete.  There is no basis upon which the prayers can be granted.  There is no way a date for hearing of the appeal can be fixed without a complete record being availed.  I find that the application herein is incompetent.  The Preliminary Objection by the Respondent is upheld.  The application dated 30/10/2013 is hereby struck out with costs to the Respondent.

It is so ordered.

Dated, signed and delivered in Open Court on this 7th day of November, 2013.

E. OBAGA

JUDGE

In the presence of

M/S Arunga for the Applicant.

No appearance - Respondent.

Isabella - Court Clerk.

E. OBAGA

JUDGE

07/11/2013