[2015] KEHC 3425 (KLR)
The court found that the appeal had not been prosecuted since November 2009, and the judgment of the lower court had already been executed with the decretal sum released to the respondent. The application for leave to file the appeal out of time had been dismissed, and the continued pendency of the appeal served no...
Source-derived case information.
- Citation
- [2015] KEHC 3425 (KLR)
- Parties
- Appellant: AIC Polytechnic; Appellant: Simon Chege; Respondent: John Kuria; Respondent: Auctioneers (unnamed)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal Appeal101 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- JK Mulwa
- Legal Topics
- Dismissal for Want of Prosecution, Execution of Judgment, Appeal Out of Time
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
AIC Polytechnic
Appellant
Simon Chege
Appellant
John Kuria
Respondent
Auctioneers (unnamed)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 rule 35 and Order 51 rule 1 of the Civil Procedure Rules.
- 2 Whether the satisfaction of the lower court decree renders the appeal moot.
- 3 Whether auctioneers' charges should be addressed in the lower court.
Ratio Decidendi
The court found that the appeal had not been prosecuted since November 2009, and the judgment of the lower court had already been executed with the decretal sum released to the respondent. The application for leave to file the appeal out of time had been dismissed, and the continued pendency of the appeal served no purpose. Therefore, the appeal was dismissed for want of prosecution, and any issues regarding auctioneers' charges were to be addressed in the lower court.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The application dated 7th April 2011 is allowed.
- The appeal filed on 18th June 2009 is dismissed for want of prosecution with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
HIGH COURT CIVIL APPEAL NUMBER 101 OF 2009
1. AIC POLYTECHNIC.......................................................1ST APPELLANT
2. SIMON CHEGE..............................................................2ND APPELLANT
VERSUS
JOHN KURIA...........................................................................RESPONDENT
(An appeal from the Judgment of the Honourable Senior Resident Magistrate Mr. Nduku Njuki delivered at Naivasha on 9th April, 2009 in Naivasha SPMCC No. 19 of 2005.
RULING
The Respondent by his application dated 7th April 2011 and filed on the 12th April 2011 sought an order for the dismissal of the Appellants Appeal filed on the 8th June 2009 for want of prosecution pursuant to provisions of Order 42 rule 35, 51 rule 1 of the Civil Procedure Rules. The application is supported by an affidavit sworn by the applicant on the 7th April 2011, and on grounds that since the 16th November 2009, no action has been taken to prosecute the appeal.
The court was told that the Judgment of the lower court and subject of the appeal has since been executed and the decretal sum released to the Respondent. As such the appeal serves no purpose, and in any event the appeal was filed out of time and the appellants application for leave to file the same out of time was dismissed by the court on the 16th November 2009.
Mr. Nyamwange Advocate told the court that he represents the Auctioneers who are entitled to their charges in the lower court, and costs of the appeal.
I have considered the application and submissions by counsel. As the decree of the lower court and subject of the appeal herein has been satisfied, the continued pendency of the appeal in the court serves no purpose save to add up to the backlog.
As to the Auctioneers charges alleged to be due in the lower court, it is the courts view that the same ought to be followed up in the lower court.
The application dated 7th April 2011 is allowed and this appeal filed on the 18th June 2009 is dismissed for want of prosecution with costs to the Respondent.
It is so so ordered.
Dated signed and delivered in open court this 23rd day of July 2015
JANET MULWA
JUDGE
In the presence of:
Ms. Kerugo holding brief for Nyamwange - for the Auctioneers
Ms. Magana holding brief for Gekong'a for the Applicant
No appearance for the Appellant.
Court clerk - Linah