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ELCDismissedNotice of Motion dated 18th July 2019 in the Appeal filed on 14th February 2019 (arising from Thika CMCC No. 687 of 2010)· [2020] KEELC 2143 (KLR)

Paul Gitau Muchina (suing on behalf of the Estate of Regina Muthoni Gitau (Deceased) v Attorney General & another [2020] KEELC 2143 (KLR)

High Court of Kenya
15 June 2020
LGL. GACHERU
2,100 words in judgment
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The bottom line

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The High Court at Thika refused to throw out a civil appeal, holding that an appeal can only be rejected summarily once the full record and decree are actually on file.

What this practically means

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Executive summary

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This ruling of the High Court at Thika (L. Gacheru J) determined a Notice of Motion dated 18th July 2019 by Josephine Kabura Gichuhi, the respondent in an appeal by Paul Gitau Muchina against the judgment of Principal Magistrate M. W. Wanjala delivered on 8th February 2019 in Thika CMCC No. 687 of 2010, a land dispute over plot LR No. Ruiru/Mugutha Block 1/T559 in which the magistrate had dismissed the respondent's suit and allowed the appellant's counter-claim. The applicant sought summary rejection of the appeal under Section 79B of the Civil Procedure Act, alternatively dismissal for want of prosecution under Order 42 Rule 11. The appellant opposed, arguing that only the Memorandum of Appeal had been filed and that no complete appeal existed for summary rejection because the certified decree and record of appeal were still awaited from the registry. The court held that a complete appeal under Order 42 Rule 13 requires a memorandum of appeal, the full record of appeal and the decree appealed against; since only the memorandum was on file when the application was lodged, there was no appeal capable of summary rejection. On want of prosecution, the court accepted the explanation that the delay was occasioned by the registry's failure to issue proceedings and the decree, noting the appellant had since filed the record of appeal on 17th October 2019. The application was dismissed entirely with costs to the appellant, the appeal was admitted under Section 79B, and directions were ordered for canvassing of the appeal on the merits.

Key legal issues

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01

Whether Section 79B summary rejection could apply to an incomplete appeal

Holding

No - without the certified decree and record of appeal, there was no appeal before the court capable of being summarily rejected

Reasoning

Section 79B empowers the High Court to reject an appeal summarily where there is no sufficient ground for interfering with the decree. However, the court must examine the memorandum of appeal together with the decree appealed against. Where only the memorandum has been filed and the record of appeal and certified decree are absent, the court lacks the material needed to exercise that discretion, and an application for summary rejection is premature.

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02

Whether the appeal should be dismissed for want of prosecution

Holding

No - the delay was explained, a complete appeal had since been filed, and such interlocutory applications only delay matters

Reasoning

Dismissal for want of prosecution requires inordinate and unexplained delay. The appellant showed he was awaiting typed proceedings and the decree from the subordinate court, producing correspondence to the Chief Magistrate, and had by then filed the record of appeal with the certified decree. Section 79G also permits enlargement of time where the delay is not the appellant's fault.

p. 3

Legal principles established

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  • A complete appeal under Order 42 Rule 13 consists of a Memorandum of Appeal, the full Record of Appeal and the Decree appealed against; a court cannot summarily reject an incomplete appeal under Section 79B
  • The power to summarily reject an appeal must be used sparingly and only in the clearest of cases

Court orders

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  1. 1.The Notice of Motion dated 18th July 2019 is dismissed entirely with costs to the Appellant/Respondent
  2. 2.The Record of Appeal filed on 17th October 2019 is admitted under Section 79B of the Civil Procedure Act
  3. 3.Directions to be taken on how the appeal shall be canvassed, thereafter the appeal to be determined on merit

Authorities

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Legislation

  • Civil Procedure ActSection 79B
  • Civil Procedure ActSection 79G
  • Civil Procedure ActSection 79C
  • Civil Procedure ActSections 1A(3), 1B
  • Civil Procedure Rules, 2010Order 42 Rules 2, 11, 13(1), 13(4)
  • Civil Procedure Rules, 2010Order 51 Rule 1
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (3)

  • Harbas Singh Soor Vs Fatima Ah Mohamed
    Court of Appeal No. 120 of 2005 (2016) 1 EA
  • Manases Kuria & Others Vs Njoroge
    Civil Appeal No. 153 of 1994
  • Kamau t/a Sideview Garage Vs Fredrick Isuka Kalumbo
    (2016) eKLR
On appeal from
Principal Magistrate's Court, Thika
Thika Civil Case No. 687 of 2010
Jurisdiction invoked
Sections 79B, 79G, 1A(3) and 1B of the Civil Procedure Act; Order 42 Rules 2, 11, 13 and Order 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Paul Gitau Muchina (suing on behalf of the Estate of Regina Muthoni Gitau (Deceased) v Attorney General & another [2020] KEELC 2143 (KLR)", Case Analysis (2020). Notice of Motion dated 18th July 2019 in the Appeal filed on 14th February 2019 (arising from Thika CMCC No. 687 of 2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2143/eng@2020-06-15

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