Nzioki V Kitusa  EKLR
|Civil Appeal 54 of 1982||23 Dec 1982|
Eric John Ewen Law, Alan Robin Winston Hancox, Kenneth D Potter
Court of Appeal at Nairobi
Nzioki v Kitusa
Nzioki v Kitusa  eKLR
Nzioki v Kitusa
Court of Appeal, at Nairobi December 23, 1982
Law, Potter JJA & Hancox Ag JA
Civil Appeal No 54 of 1982
(Appeal from the High Court at Nairobi, Muli J)
Review - application for - powers of the court thereof – circumstances under which such an application can be dismissed - dismissal without hearing parties - whether such dismissal proper.
Appeal - summary dismissal of - appeal - exercise of power to do so by court - summary dismissal of second and final appeal - whether such dismissal proper.
The appellants, being dissatisfied with the decision of a magistrate’s court in its appellate jurisdiction, filed a second appeal to the High Court which was summarily dismissed. The appellants then applied to the High Court for a review of the order dismissing their appeal and the judge, without hearing argument on the merits of the application, observed that it was not a proper case for review and suspended it indefinitely. By a subsequent addition to the order made in the absence of the parties, the judge added that in his view the application had “virtually no chance of success”, and stated a date on which it would be mentioned. From this order, the apellants appealed on the principal ground that the judge erred in dismissing the application for review without hearing the parties.
1. The Civil Procedure Act section 79B empowers the High Court to summarily dismiss an appeal where the court considers that there is no sufficient ground for interfering with the decree appealed from.
2. The power of summary dismissal should be used sparingly and only in the clearest cases, such as an appeal based entirely on points of facts, raising no questions of law and not as the case was here where the memorandum of appeal raised substantial grounds of law such as that of adverse possession.
3. It was wrong to dismiss the appeal summarily as the appeal to the High Court was a second appeal and therefore a final appeal.
4. The application for review was never heard and it could not therefore lawfully have been dismissed.
No cases referred to.
1. Civil Procedure Act (cap 21) sections 71A(2), 79B, 80
2. Civil Procedure (Revised) Rules 1948 (cap 21 Sub Leg) order XLII rule 1(1) (aa); order XLIV rule 1
Mr Mervyn Morgan for Respondent
Mr JB Patel for Appellant