Mwaura & another v Kambo & 2 others [2022] KEHC 3172 (KLR)

Mwaura & another v Kambo & 2 others (Civil Appeal 103 of 2020) [2022] KEHC 3172 (KLR) (16 June 2022) (Ruling)

Neutral citation: [2022] KEHC 3172 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal 103 of 2020

MM Kasango, J

June 16, 2022

Between

Susan Nduta Mwaura

1st Appellant

Rurunga Mwangi Mwaura

2nd Appellant

and

Anthony Mwaura Kambo

1st Respondent

Judy Njeri Kambo

2nd Respondent

Hannah Njeri Njuguna

3rd Respondent

(An appeal from the Ruling of the Senior Resident Magistrate’s Court at Gatundu (Hon. H.M. Nganga, SRM) dated 8th April, 2020 in Succession Case No. 230 of 2017 consolidated with Succession Case No. 231 of 2017)

Ruling

1. This is an appeal against the decision of Senior Resident Magistrate’s Court. The decision is of April 8, 2020. The memorandum of Appeal was filed before this Court on August 21, 2020. Without any stretch of imagination, it becomes very clear that the memorandum of appeal was filed beyond 30 days from the date of Ruling, the subject of this Appeal. This was in contravention of Section 79G of the Civil Procedure Act. The appellant ought to have sought an order to admit the appeal out of time. I cannot see such an order. It follows that until that order is granted, there is no valid appeal on record. It further follows that the application filed by the appellants dated October 26, 2020 cannot be granted since it is founded on non-existent appeal.

2. It is because of the above that the summons dated 26th October, 2020 is struck out with costs.

3. Orders accordingly.

RULING DATED AND DELIVERED AT KIAMBU THIS 16THDAY OF JUNE, 2022. MARY KASANGOJUDGECoram:Court Assistant : MouriceFor 1st Appellant : - No appearanceFor 2nd Appellant: - Miss Kiarie holding brief for Mr. Ndungu MwauraFor 1st and 2nd Respondents :- Ms. Muritu3rd Respondent : - Present in personRULING delivered virtually.MARY KASANGOJUDGE