Stephen Ndungu Kamande & another v Stephen Muriuki George & another [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi
Category
Civil
Judge(s)
L. Njuguna
Judgment Date
October 22, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3
Explore the summary of the 2020 case Stephen Ndungu Kamande & another v Stephen Muriuki George & another on eKLR. Gain insights into the legal principles and outcomes addressed in this significant judgment.

Case Brief: Stephen Ndungu Kamande & another v Stephen Muriuki George & another [2020] eKLR

1. Case Information:
- Name of the Case: Stephen Ndungu Kamande & Durga Feeds Limited v. Stephen Muriuki George & Monicah Igoki M’ithinji (Both suing as administrators ad litem of the estate of Josphine Mwendwa-Deceased)
- Case Number: Civil Appeal No. 314 of 2019
- Court: High Court of Kenya at Nairobi
- Date Delivered: October 22, 2020
- Category of Law: Civil
- Judge(s): L. Njuguna
- Country: Kenya

2. Questions Presented:
The court must resolve the following legal issues:
1. Whether the respondents' motion to dismiss the appeal for want of prosecution is properly before the court.
2. Whether the appellants' delay in prosecuting the appeal is inordinate and excusable.
3. Whether the change of advocates for the appellants was valid under the Civil Procedure Rules.

3. Facts of the Case:
The appellants, Stephen Ndungu Kamande and Durga Feeds Limited, filed a memorandum of appeal on June 11, 2019, against a judgment in favor of the respondents, Stephen Muriuki George and Monicah Igoki M’ithinji, who are the administrators of the estate of Josphine Mwendwa (deceased). The respondents filed a Notice of Motion on July 6, 2020, seeking to have the appeal dismissed for want of prosecution, claiming that the appellants had not taken any steps to advance the appeal for over a year.

The respondents further sought the release of Kshs. 1,100,000 deposited in court as security. The appellants countered that they had faced challenges in obtaining the necessary court documents to proceed with the appeal and argued that the delay was not inordinate.

4. Procedural History:
The case began with the appellants filing their appeal in June 2019. The respondents attempted to have the appeal dismissed due to inactivity, leading to the filing of a motion in July 2020. The appellants responded with a defense citing procedural issues regarding their representation and the validity of the motion. The court directed both parties to submit written arguments regarding the motion.

5. Analysis:
- Rules: The court considered Order 42, Rule 35 of the Civil Procedure Rules, which outlines the process for dismissing an appeal for want of prosecution. It specifies that an appeal can be dismissed if it has not been set down for hearing within one year of the memorandum being served.

- Case Law: The court referenced previous cases such as *Jurgen Paul Flach v Jane Akoth Flach* and *Kirinyaga General Machinery v. Hezekiel Mureithi Ireri*, which assert that appeals cannot be dismissed unless directions have been given by the court. The case of *Kenya Nut Company Limited v Justine Musyoka Nkabi* was cited, where an appeal was dismissed for inactivity over eight years.

- Application: The court found that the respondents had not demonstrated that the appeal was ripe for dismissal as no directions had been given. It ruled that the appellants had made efforts to obtain the necessary documents, and any delay was not inordinate. The court also determined that the change of advocates for the appellants was improperly executed as they did not comply with the requirements of Order 9, Rule 9 of the Civil Procedure Rules.

6. Conclusion:
The court struck out the respondents' motion but ordered the Deputy Registrar to expedite the process of forwarding the lower court file to the High Court. The appellants were directed to file their record of appeal within a specified timeframe and to ensure that the appeal was prosecuted within 90 days, failing which the appeal would be dismissed.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court ruled in favor of the appellants by striking out the motion to dismiss the appeal for want of prosecution. The court emphasized the importance of following procedural rules while also considering the interests of justice. The decision highlights the balance courts must strike between procedural compliance and the right to a fair hearing.

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