Case ID:176062

Samuel M T Githinji v Francis Wachira Githae [2021] eKRL

Case Metadata

Case Number:

Miscellaneous Civil Application 18 of 2020

Parties:

Samuel M T Githinji v Francis Wachira Githae (t/a Large Power and Controls)

Date Delivered:

03 Jun 2021

Case Class:

Civil

Court:

High Court at Nanyuki

Case Action:

Ruling

Judge(s):

Hatari Peter George Waweru

Citation:

Samuel M T Githinji v Francis Wachira Githae [2021] eKRL

Court Division:

Civil

County:

Laikipia

Disclaimer:

The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NANYUKI

MISCELLANEOUS CIVIL APPLICATION NO.18 OF 2020

SAMUEL M T GITHINJI.................................................APPLICANT

VERSUS

FRANCIS WACHIRA GITHAE

(T/A LARGE POWER AND CONTROLS)

...................RESPONDENT

R U L I N G

1.

This ruling concerns the

notice of motion herein dated 21/08/2020

. The application seeks, firstly, leave to appeal out of time under

section 79G

of the

Civil Procedure Act

and, secondly, stay of execution of decree and all consequential orders under

Order 42, Rule 6

of the

Civil Procedure Rules, 2010

.

2.

What is sought to be appealed against is not stated on the face of the application; however, from the supporting affidavit and a draft memorandum of appeal annexed thereto, what is sought to be appealed against is the

ruling and order of the lower court delivered on 29/08/2019

by which that court refused an application by the Applicant to set aside

ex parte

proceedings of 07/11/2018 and

ex parte

judgment delivered on 28/11/2018.

3.

In the course of arguments on 17/05/2021 learned counsel for the Applicant stated that there had been a previous application in this court similar to the present one vide

Nanyuki HC Misc Civil Application No 17 of 2020

which counsel stated was

“abandoned and dismissed”.

Learned counsel for the Respondent stated that he was not aware of any such application as neither he nor the Respondent personally was served with such application.

4.

Before commencing to write this ruling, I directed the

High Court Civil Registry

to avail to me the alleged Nanyuki HC Misc Civil Application No 17 of 2020 between the parties. The file bearing that number is not in the names of the parties herein.

5.

The only other file bearing the names of these same parties that the registry staff found was

Nanyuki HC Civil Appeal No 15 of 2019

(Samuel M T Githinji –vs- Francis Wachira Githae – t/a Large Power & Controls)

. The appeal is against –

“…Ruling in Nanyuki Chief Magistrate’s Court Civil Case No 3 of 2018 by learned…L Mutai (CM) on 29/08/2019”

.

That is the very same ruling/order that the Applicant in the present application is seeking leave to appeal against!

6.

It means therefore, that there is already an appeal pending (filed on 27/09/2019) which the Applicant should be prosecuting instead of filing useless applications. That appeal was filed through

M/s. G M Wanjohi & Co., Advocates

, the same advocates who filed the present application on 01/09/2020!

7.

Needless to say, the present application is misconceived and an abuse of the process of the court. It is hereby dismissed with costs to the Respondent. It is so ordered.

DATED AND SIGNED AT NANYUKI THIS 2

ND

DAY OF JUNE 2021

H P G WAWERU

JUDGE

DELIVERED AT NANYUKI THIS 3

RD

DAY OF JUNE 2021