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ELCOtherNot stated in the judgment· [2020] KEELC 430 (KLR)

Phares Munyambu Rimberia & another v Seventh Day Adventist Church [2020] KEELC 430 (KLR)

High Court of Kenya
23 November 2020
PNP. M. Njoroge
306 words in judgment
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The bottom line

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Kenya's High Court at Chuka summarily rejected an intended appeal after the appellants repeatedly ignored court filing directions.

What this practically means

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Executive summary

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The High Court at Chuka, per P. M. Njoroge J, delivered this ruling on 23rd November 2020 in an intended second appeal. The intended appellants had on 14th October 2020 been directed to respond to the respondent's replying affidavit and to file and exchange written submissions on an application dated 15/9/2020 within seven days, and were later directed on 11th November 2020 to file and exchange a record of appeal within seven days. They complied with none of these directions. On repeated occasions Mary Muthoni, wife of the 2nd intended appellant Charles Kithinji, told the court that her husband was indisposed and that he did not support the intended appeal, having not been consulted when the suit was filed. On 23rd November 2020, Advocate Nyenyire for the respondent pointed out that no record of appeal had been filed despite the court orders and urged dismissal for disobedience of court orders. The court accepted that such disobedience would be a sufficient reason for dismissal, but disposed of the appeal on another basis: exercising its power under Section 79B of the Civil Procedure Act, the judge perused the intended appeal, found no sufficient ground for interfering with the decree or any order appealed against, and summarily rejected the appeal. No costs order was recorded. No case authorities were cited and no prior decision below was reviewed on the merits.

Key legal issues

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01

Whether the intended appeal ought to be dismissed for disobedience of court directions

Holding

The court held disobedience would justify dismissal but declined to rest its decision on that ground, instead rejecting the appeal summarily under Section 79B

Reasoning

The intended appellants repeatedly failed to comply with court directions to file a reply to the replying affidavit, written submissions and a record of appeal. Counsel for the respondent urged dismissal on grounds of disobedience. The court agreed such disobedience was a sufficient reason for dismissal but chose to dispose of the matter on the substantive Section 79B route, perusing the memorandum of appeal and finding no sufficient ground for interference.

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02

Whether there was sufficient ground for interfering with the decree appealed against

Holding

On perusal of the intended appeal the court found none and summarily rejected the appeal under Section 79B

Reasoning

Exercising the summary rejection power in Section 79B of the Civil Procedure Act, the judge perused the intended appeal and concluded there was no sufficient ground for interfering with the decree or any order appealed against. This is a first-instance exercise of statutory appellate screening power rather than a review of the merits of the subordinate court's judgment.

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Legal principles established

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  • Disobedience of court orders is a sufficient reason for dismissal of an appeal
  • Under Section 79B of the Civil Procedure Act, a court may summarily reject a second appeal where no sufficient ground for interfering with the decree is shown on perusal of the memorandum of appeal

Court orders

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  1. 1.The intended appeal is summarily rejected under Section 79B of the Civil Procedure Act

Authorities

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Legislation

  • Civil Procedure ActSection 79B
Jurisdiction invoked
Section 79B of the Civil Procedure Act (second appeal summary rejection power)

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, "Phares Munyambu Rimberia & another v Seventh Day Adventist Church [2020] KEELC 430 (KLR)", Case Analysis (2020). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/430/eng@2020-11-23

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