Mary Wangu & 4 others v Muriithi Rucathi & another [2019] KEELC 1011 (KLR)
The bottom line
#A Kenyan court refused to strike out an old land appeal because the wrong procedure was used to attack it — timing and process matter.
What this practically means
#Executive summary
#Key legal issues
#Striking out an appeal under Order 2 Rule 15 CPR
The application fails because the procedural prerequisite of directions under Section 79B CPA has not occurred; substantive justice over technicality applies
The court held that although a party may move the court at any stage, directions must first be taken under Section 79B CPA as read with Order 42 Rule 13 and Rule 35 CPR. Following Kirinyaga General Machinery v Ezekiel Mureithi Ireri, orders sought before directions are given cannot be entertained. Order 2 Rule 14 CPR was noted as a saving provision requiring substantive justice over technicalities.
Dismissal of appeal for want of prosecution under Order 42 Rule 35(2)
The applicable provision is Order 42 Rule 35(2), which assigns the listing of the appeal for dismissal to the Registrar, and since the Registrar did not do so the application fails
The court adopted the reasoning in Rosavie (EPZ) Ltd v Stanlex Mbithi James distinguishing Rule 35(1) (respondent moves the court after three months from directions) from Rule 35(2) (Registrar lists the appeal where no steps taken within one year of service of the memorandum of appeal). No directions had been given and the Registrar had not listed the matter, so the applicant could not invoke the dismissal mechanism.
Legal principles established
#- Before directions are given in an appeal, an application for dismissal of the appeal for want of prosecution cannot be entertained; the dismissal mechanism lies with the Registrar under Order 42 Rule 35(2)
Court orders
#- 1.The application seeking to strike out the appeal was dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- SRM's Court Wanguru
- Wanguru SRM Misc. Succession No. 22 of 2004
- Jurisdiction invoked
- Order 2 Rule 15, Order 42 Rule 11 and 13, Order 51 Rule 1 Civil Procedure Rules; Section 79B Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wangu & 4 others v Muriithi Rucathi & another [2019] KEELC 1011 (KLR)", Case Analysis (2019). ELCA No. 27 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1011/eng@2019-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.