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

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: 22nd October 2020
- Category of Law: Civil
- Judge(s): L. Njuguna
- Country: Kenya

2. Questions Presented:
The central legal issues before the court included:
- Whether the appeal should be dismissed for want of prosecution due to the appellants' delay in filing necessary documents.
- Whether the respondents' application was properly before the court, considering the procedural requirements for a change of advocates.

3. Facts of the Case:
The appellants, Stephen Ndungu Kamande and Durga Feeds Limited, filed a memorandum of appeal on 11th June 2019, contesting 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 moved the court with a Notice of Motion on 6th July 2020, seeking the dismissal of the appeal for want of prosecution and the immediate release of a deposit made in court. They argued that the appellants had failed to prosecute the appeal for over a year. The appellants countered that the delay was due to difficulties in obtaining necessary court documents.

4. Procedural History:
The respondents filed their Notice of Motion seeking dismissal of the appeal, which led to a series of affidavits and submissions from both parties. The appellants argued that the delay was not inordinate and that they had been working to obtain the necessary documents. The respondents contended that the appellants had not complied with procedural rules regarding change of advocates and that the motion was improperly before the court.

5. Analysis:
- Rules: The court considered Order 42, Rule 35 of the Civil Procedure Rules, which outlines the conditions under which an appeal can be dismissed for want of prosecution. It was noted that directions must be given before an appeal can be dismissed.
- Case Law: The court referenced several cases, including *Jurgen Paul Flach v Jane Akoth Flach* and *Kirinyaga General Machinery v. Hezekiel Mureithi Ireri*, which established that an appeal cannot be dismissed unless directions have been given. The court also noted the importance of procedural compliance as emphasized in *Bridges Exploration Limited v Stephen Karanja*.
- Application: The court found that the respondents had not demonstrated that the appeal was ripe for dismissal, as no directions had been given, and the Deputy Registrar had not listed the appeal for dismissal. The court also ruled that the appellants had not properly changed their advocates as required by Order 9, Rule 9 of the Civil Procedure Rules, rendering their submissions invalid.

6. Conclusion:
The court struck out the respondents' Motion for dismissal but imposed timelines for the prosecution of the appeal. The appellants were ordered to file their record of appeal within a specified period and to move the Deputy Registrar for directions, failing which their appeal would stand dismissed.

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

8. Summary:
The High Court of Kenya ruled in favor of the appellants, allowing them to proceed with their appeal while emphasizing the importance of adhering to procedural rules. The decision underscored the balance between ensuring timely prosecution of appeals and upholding the right to a fair hearing. The court's ruling also highlighted the necessity for proper legal representation and compliance with procedural requirements in civil litigation.

Document Summary

Below is the summary preview of this document.

  • Stephen-Ndungu-Kamande--another-v-Stephen-Muriuki-George--another-[2020]-eKLR-Case-Summary_2444_0.jpg

This is the end of the summary preview.

Related Documents

View all summaries