[2006] KEHC 996 (KLR)
The court found that the application for dismissal of the appeal for want of prosecution was incompetently before the court because directions in the appeal had not been taken as required by Order XLI rule 8B(1) of the Civil Procedure Rules. The law mandates that such an application can only be made after directions...
Source-derived case information.
- Citation
- [2006] KEHC 996 (KLR)
- Parties
- Appellant: Ali Shee Bwanakweli; Respondent: Juma Iddi Salim
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 169 of 2002
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- Application struck out as incompetent.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Directions in Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali Shee Bwanakweli
Appellant
Juma Iddi Salim
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI rule 31 of the Civil Procedure Rules.
- 2 Whether the application for dismissal was properly before the court in the absence of directions under Order XLI rule 8B(1).
Ratio Decidendi
The court found that the application for dismissal of the appeal for want of prosecution was incompetently before the court because directions in the appeal had not been taken as required by Order XLI rule 8B(1) of the Civil Procedure Rules. The law mandates that such an application can only be made after directions have been issued. Since this procedural step was not complied with, the only available option for the respondent was to prompt the registrar to place the file before a judge for dismissal under the relevant rule. Consequently, the summons was struck out as incompetent.
Court Disposition
Application struck out as incompetent.
Orders
- The summons for dismissal of the appeal is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA
Civil Appeal 169 of 2002
ALI SHEE BWANAKWELI………………….....................................……………APPELLANT
VERSUS
JUMA IDDI SALIM ……………………..................................…….…………..RESPONDENT
J U D G M E N T
In a summons filed under Order XLI rule 31 of the Civil Procedure Rules, Juma Iddi Salim urged this court to dismiss the appeal for want of prosecution. He filed an affidavit in support of the summons. The summons did not attract any response from the appellant hence the same proceeded for hearing exparte under order L rule 16(3) of the Civil Procedure Rules.
The main ground raised by the Respondent is that the appeal should be dismissed because the appellant did not take any step to make the appeal ready for hearing.
I have carefully considered this ground vis a vis the provisions of order XLI rule 31 of the Civil Procedure rules. In that rule, the law is clear that an application under it shall only be made after directions in the appeal have been taken pursuant to Order XLI rule 8 B (1) of the procedure rules. I have perused the court’s record and it is clear that such directions have not been taken. The only open option for the Respondent is to prompt the registrar to place the file before a judge for dismissal under Order XLI rule 31(2) of the Civil Procedure rules. Without belabouring so much on the matter, I hold that the summons is incompetently before this court. It is ordered struck out with no order as to costs.
Dated and delivered at Mombasa this 4th day of October, 2006.
J.K. SERGON
J U D G E