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ELCDismissedAppeal arising from MERU CMCC NO. 852 OF 1998· [2017] KEELC 3357 (KLR)

James Ngirine Mukuari v Michael Kilemi & 2 others [2017] KEELC 3357 (KLR)

High Court of Kenya
14 March 2017
1,452 words in judgment
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The bottom line

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The High Court in Meru refused to dismiss an old appeal for delay because missing court-typed proceedings, not the appellant, caused the wait.

What this practically means

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Executive summary

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The Attorney General, acting for the 2nd and 3rd Respondents, brought a Chamber Summons dated 29th February 2016 under Order 42 Rule 35(1) of the Civil Procedure Rules and Article 159(2) of the Constitution seeking dismissal of an appeal for want of prosecution. The appeal had been filed by the Appellant against the judgment of Hon. E.W Wambugu RM in Meru CMCC No. 852 of 1998 delivered on 16th January 2015. The applicant and the 1st Respondent, Michael Kilemi, contended that the appeal had not been prosecuted for over a year and that a successful litigant should enjoy the fruits of his judgment. The Appellant opposed, blaming the court registry: he had paid the Kshs. 1,000 deposit for typed proceedings and repeatedly followed up, but the file - a bulky 1998 file handled by five magistrates and over ten witnesses - remained untyped. The judge independently perused the lower court file and confirmed the proceedings were still not ready. Relying on Articles 22(3)(d) and 159(2)(d) of the Constitution, the court held the appellant should not be faulted for the delay, and that failure to obtain Section 79B directions was a procedural technicality. The court found it would not be in the interest of justice to dismiss the appeal at that stage, dismissed the application, directed that the proceedings be typed, proof read and certified within 60 days failing which the Executive Officer would appear in court, ordered service of the orders for compliance, and directed each party to bear their own costs of the application.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(1)

Holding

The application for dismissal was refused because the delay was attributable to the unavailability of typed lower court proceedings, not the appellant's indolence.

Reasoning

The court noted the appeal had not been prosecuted for over a year, but on perusing the lower court file it confirmed the proceedings were still not ready even at the date of hearing. Since the appellant paid the required deposit and repeatedly followed up, the delay was beyond his control. Dismissal would defeat substantive justice under Articles 22(3)(d) and 159(2)(d) of the Constitution.

p. 3
02

Whether failure to obtain directions under Section 79B and Order 42 Rule 11 warranted dismissal

Holding

Non-compliance with the direction-giving requirements was treated as a procedural technicality not justifying dismissal.

Reasoning

The court acknowledged the appellant had not caused the appeal to be listed for directions within 30 days as required by Order 42 Rule 11, and that the Deputy Registrar ordinarily presents the file for admission. However, invoking Article 159(2)(d), the court held such compliance requirements are technicalities that should not obstruct the hearing of the appeal on its merits.

p. 4

Legal principles established

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  • Procedural technicalities, such as failure to comply with listing requirements for directions, should not be used to hinder substantive justice.
  • An appellant who is diligent but is unable to obtain the record of appeal due to circumstances beyond his control should not have his appeal dismissed for want of prosecution.

Court orders

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  1. 1.The application dated 29th February 2016 is dismissed
  2. 2.Proceedings in CMCC 852/1998 be typed, proof read and supplied to the parties speedily
  3. 3.Typing, proof reading and certification of the proceedings to be conducted within 60 days, failing which the Executive Officer, Meru Law Courts to appear before the court to explain the status of the proceedings
  4. 4.The orders to be served upon the CM Meru, Deputy Registrar and the Executive Officer for compliance
  5. 5.Each party to bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure Rules (CAP 21)Order 42 Rule 35(1)
  • Civil Procedure RulesOrder 42 Rule 11
  • Constitution of Kenya, 2010Article 159(2)(d)
  • Constitution of Kenya, 2010Article 22(3)(d)
  • Civil Procedure ActSection 79B

Cases cited (4)

  • Jurgen Paul Flach v Jane Akoth Flach
    [2014] eKLR
  • Kirinyaga General Machinery v Hezekiel Mureithi Ireri
    HCC No. 98 of 2008
  • Suresh Ruginath Raniga & another v Sagar Mohan S.M Ram
    Civil Appeal No. 433 of 2012
  • Abdirahman Abdi v Safi Petroleum Products Ltd & 6 others
    [2011] eKLR, Civil Application No. Nai. 173 of 2010
On appeal from
Chief Magistrate's Court, Meru
CMCC No. 852 of 1998
Jurisdiction invoked
Order 42 Rule 35(1) CPR and Article 159(2) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "James Ngirine Mukuari v Michael Kilemi & 2 others [2017] KEELC 3357 (KLR)", Case Analysis (2017). Appeal arising from MERU CMCC NO. 852 OF 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3357/eng@2017-03-14

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.