Munene v Njoka & another (Environment and Land Appeal E005 of 2021) [2022] KEELC 3876 (KLR) (10 June 2022) (Ruling)
Neutral citation:
[2022] KEELC 3876 (KLR)
Republic of Kenya
Environment and Land Appeal E005 of 2021
EC Cherono, J
June 10, 2022
Between
Joseph Muriithi Munene
Appellant
and
Francis Gitari Njoka
1st Respondent
Hellen Karambu Gitari
2nd Respondent
Ruling
1.The appellant herein, being aggrieved by the ruling of the trial court in CM-ELC Case No 62 of 2018 filed a memorandum of appeal dated February 18, 2021 raising six (6) grounds of appeal. He subsequently filed his record of appeal on December 23, 2021.
2.On January 31, 2022 the respondent filed a preliminary objection raising the following grounds;a.That the record of appeal contravenes the provisions of order 42 rule 2 of the Civil Procedure Rules.b.That there are no sufficient grounds for interfering with the ruling appealed against and the same ought to the rejected under the provisions of section 79B of the Civil Procedure Act.c.The appeal ought to be dismissed with costs to the respondent.
3.The preliminary objection was canvassed by way of written submissions. The respondent submitted that there is no order/decree attached in the record of appeal hence the appeal in its entirety is an abuse of the court process, bad in law, and should be summarily rejected.
4.The appellant submitted that he still has the opportunity to amend its record of appeal. That in Augustine Mulo Onyango v Migotiyo Plantations Limited & Anor Civil Appeal No 6 of 2017 & Toyota Tissue Products v Charles Wanga & Anor (2020) e KLR the learned judges affirmed the position that it would be draconian to strike out an appeal on the basis of technicalities.
Analysis and Determination
5.The main issue for the court’s determination is whether the appellant’s failure to attach the decree/order appealed against rendered the appeal defective/bad in law and the same ought to be summarily rejected.
6.Order 42 rule 2 of the Civil Procedure Rules provides as follows:-
7.Order 42, rule 13(4)(f) of the Civil Procedure Rules, 2010 provides;
8.From the provisions of order 42 rule 13, the court can dispense with the production of any documents which is relevant except the memorandum of appeal, the pleadings, the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal. The production of the order/decree appealed against is therefore mandatory.
9.A decree is defined under section 2 of the Civil Procedure Act, cap 21, as follows:
10.In Elizanya Investments Limited vs Lean Energy Solutions [2021] e KLR, the court held as follows;
11.At what stage therefore, should the order/decree be produced? Ideally, the decree/order being appealed against ought to be presented as part of the record of appeal. As part of the bundle, the court will easily refer to it. Order 42 rule 2 however gives the appellant leave to file the same as soon as possible and preferably before the matter is set down for hearing. The appellant’s failure to file the same together with the record of appeal does not, therefore, render the record and in turn the appeal bad in law.
12.At this stage, the appeal herein is yet to be set down for hearing. I agree with the decision in Augutine Mulo Onyango (supra) that it would be draconian to strike out the appeal.
13.The upshot of this court’s determination is that the respondent’s preliminary objection lacks merit and the same is hereby dismissed with costs to the appellant.
RULING READ, DELIVERED AND SIGNED IN THE OPEN COURT AT KERUGOYA THIS 10TH, JUNE, 2022.……………………………HON. E.C. CHERONOELC JUDGEIn the presence of-;1) M/S Kiragu holding brief for Igati Mwai2) Applicant—present3) Respondent/Advocate------absent4) Kabuta – Court Assistant.