[2014] KEHC 5263 (KLR)
The court found that the appellant failed to take any steps to prosecute the appeal for over three years after the memorandum of appeal was filed and the lower court record was received. Despite being served with a notice to show cause, the appellant did not provide any explanation or justification for the delay....
Source-derived case information.
- Citation
- [2014] KEHC 5263 (KLR)
- Parties
- Appellant: Abdi Karah Makarasa; Respondent: Loldia Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 7 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Order 42 Rule 35
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Abdi Karah Makarasa
Appellant
Loldia Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant failed to take any steps to prosecute the appeal for over three years after the memorandum of appeal was filed and the lower court record was received. Despite being served with a notice to show cause, the appellant did not provide any explanation or justification for the delay. The court applied Order 42 Rule 35(2) of the Civil Procedure Rules, which empowers the court to dismiss an appeal for want of prosecution if it is not set down for hearing within one year. The court concluded that the appellant had lost interest in the matter and that the appeal did not warrant further time in court. Accordingly, the appeal was dismissed with costs to the...
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO.7 OF 2011
ABDI KARAH MAKARASA ....................... APPELLANT
VERSUS
LOLDIA LIMITED ................................. RESPONDENT
RULING
On 14/01/2011, the appellant filed a memorandum of appeal dated 13th January 2011. By 11th may, the original record from the lower court was received by the Nakuru High Court Deputy Registrar. Thereafter, no other steps have been taken by the appellant and on 3rd February 2014, this court issued a notice to both parties’ counsel to show cause why the appeal should not be dismissed under Order 42 Rule 35 (2) Civil Procedure Rules. The Rule provides that:
Order 42 Rule 35(2)
“If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the Registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.”
There has been no activity in this matter for three years now and appellant having failed to show cause why the appeal should not be dismissed, I hold the view that the appellant has lost interest in this matter, and it does not warrant another day’s life in court. The appeal is dismissed with costs to the respondent.
Delivered and dated this 16th day of May, 2014 at Nakuru.
H.A. OMONDI
JUDGE