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Court of AppealAllowedCivil Application No. NAI. 61 of 2001

David Kimani Munyua v Chrisropher Ndegwa Kinuthia (As the legal representative of the Estate of Kinuthia Gitura Gikonyo) [2002] KECA 282 (KLR)

Court of Appeal of Kenya
21 February 2002
JGJ.E. GicheruASA.B. ShahSBS.E.O. Bosire
184 words in judgment
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The bottom line

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Kenya's Court of Appeal struck out an unopposed Notice of Appeal, ending the appeal and leaving the High Court's 2000 ruling standing.

What this practically means

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Executive summary

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This is a short, unopposed procedural order of the Court of Appeal at Nakuru, delivered on 21st February, 2002 by Gicheru, Shah and Bosire, JJ.A., in Civil Application No. NAI. 61 of 2001. David Kimani Munyua, the applicant, sought to strike out a Notice of Appeal lodged in the superior court on 17th November, 2000 in H.C.C.C No. 275 of 2000. That Notice of Appeal was lodged following the ruling of the High Court of Kenya at Nakuru (Rimita J) dated 15th November, 2000. The respondent, sued as the legal representative of the Estate of Kinuthia Gitura Gikonyo, did not oppose the application. Recording that non-opposition, the Court ordered that the Notice of Appeal 'be and is hereby struck out' and awarded the applicant the costs of the application, assessed at Shs. 3,000/=. The judgment contains no reasoning, no framed issues, no citation of statute or authority and no articulation of any principle of law; it is a purely procedural disposition turning entirely on the respondent's non-opposition, and it was delivered as one order of the full bench of three Judges of Appeal without separate opinions. Its practical effect is that the intended appeal against the ruling of Rimita J cannot proceed, the Notice of Appeal initiating it having been struck out, so the High Court ruling of 15th November, 2000 stands undisturbed. For practitioners the decision is useful only as an instance of the Court's handling of unopposed applications to strike out Notices of Appeal and of its summary assessment of costs at a modest figure; it is not a source of binding doctrine.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Notice of Appeal lodged in the superior court on 17th November, 2000 in H.C.C.C No. 275 of 2000 ought to be struck out, the respondent not opposing the application.

Key legal issues

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01

Whether the Notice of Appeal lodged on 17th November, 2000 in H.C.C.C No. 275 of 2000 should be struck out.

Holding

Yes. The application was unopposed and the Court struck out the Notice of Appeal, awarding the applicant costs of the application assessed at Shs. 3,000/=.

Reasoning

The order is a short procedural disposition made without contested argument or legal analysis. The Court recorded that the respondent did not oppose the application and, on that basis, struck out the Notice of Appeal and awarded the applicant costs assessed at Shs. 3,000/=. No principle of law was articulated and no authority was considered; the decision turns entirely on the respondent's non-opposition rather than on any articulated legal test.

p. 2

Legal principles established

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    Court orders

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    1. 1.That the Notice of Appeal lodged in the superior court on 17th November, 2000 in H.C.C.C No. 275 of 2000 be and is hereby struck out.
    2. 2.That the applicant will have the costs of the application, assessed at Shs. 3,000/=.

    The bench

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    One judgment of the whole court — no separate or dissenting opinions.

    JG
    majority
    AS
    majority
    SB
    majority
    On appeal from
    High Court of Kenya at Nakuru
    H.C.C.C No. 275 of 2000
    Jurisdiction invoked
    Not stated in the judgment. The matter is a civil application in the Court of Appeal (Civil Application No. NAI. 61 of 2001) to strike out a Notice of Appeal; no constitutional or statutory provision is cited.

    Quotable passages

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    Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

    We order therefore that the Notice of Appeal lodged in the said suit on 17th November, 2000 be and is hereby struck out.
    p. 2Final orders - striking out of the Notice of Appeal
    The applicant will have costs of this application assessed at Shs. 3,000/=.
    p. 2Final orders - costs of the application
    The respondent is not opposing this application for striking out of the Notice of Appeal lodged in the superior Court on 17th November, 2000 in H.C.C.C No. 275 of 2000.
    p. 2Non-opposition by the respondent

    Issues in the judgment

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    minor

    The cause title is typographically corrupted: the description of the application contains a duplicated 'the' and truncated wording, and the respondent's first name is printed 'CHRISROPHER' rather than 'Christopher'. The substance of the order is unaffected.

    minor

    The registrar's certification stamp ('this is true copy') is interleaved inside the delivery sentence, splitting it: 'Made and delivered at Nakuru this 21st ... day of February,2002.'

    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, "David Kimani Munyua v Chrisropher Ndegwa Kinuthia (As the legal representative of the Estate of Kinuthia Gitura Gikonyo) [2002] KECA 282 (KLR)", Case Analysis (2002). Civil Application No. NAI. 61 of 2001. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/282/eng@2002-02-21

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