Grace Okumu & 1 other v Paul Fundi Arap Boss

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KITALE CIVIL APPEAL NO. 39 OF 2013 GRACE OKUMU …..............................................................} IRENE OKUMU …...............................................................} APPELLANTS VERSUS PAUL FUNDI ARAP BOSS..................................................... RESPONDENT RULING At the hearing of an application dated 30th October, 2013, a Preliminary Objection was taken on behalf of the Respondent on the ground that the application was incompetent, fatally defective and bad in law for non compliance of Order 42 of the Civil Procedure Rules. Mr. Njuguna for the Respondent argued that the application before Court was premature as the provisions of Order 42 Rule 13(4) of the Civil Procedure Rules have not been complied with. Mr. Njuguna contended that since the Applicants had not complied with the requirements of Order 42, there is no basis upon which the application can be entertained. He asked that the application be struck out. M/S Arunga for the Applicant opposed the Preliminary Objection arguing that it was necessary to have the orders of the Court directing that the appeal be heard on priority basis before the appeal can be prepared. She argued that there will be no prejudice suffered by the Respondent. I have considered the submissions by Counsel for the Applicant and the Respondent. The application which is sought to be struck out prays for orders, that the Court be pleased to admit the appeal on priority basis and fix it for hearing on priority basis. The application also seeks dispensation with directions in this matter. Order 42 of the Civil Procedure Rules provides for an elaborate procedure of filing appeals and the procedure to follow after an appeal has been filed. There are certain steps which the Appellant has to follow. Some of these steps have timelines. In an appropriate case, some of these procedural steps may be dispersed with upon application to Court. For instance after appeal is filed, it is supposed to be placed before the judge for directions under Section 79 B of the Civil Procedure Act. After a judge has refused to reject an appeal under Section 79 B of the Civil Procedure Act, the Registrar is supposed to notify the Appellant of the rejection to summarily dismiss the appeal and the Appellant is then supposed to serve the memorandum of appeal on the Appellant within seven days of the notification by the Registrar. The Appellant is then supposed to have the appeal fixed for directions before a judge after giving notice of not less than 21 days after service of the memorandum of appeal. These are some of the procedural steps which may be dispersed with in an appropriate case. In the instant application, the Applicant is seeking dispensation with directions and for an order

page 1 of 2