[2008] KEHC 2502 (KLR)
The court held that since the appeal had not reached the directions stage as required by Order XLI Rule 31(1) of the Civil Procedure Rules, it could not be dismissed for want of prosecution on application by a party. The court further found that while the appellant had been lax in prosecuting the appeal, the proper...
Source-derived case information.
- Citation
- [2008] KEHC 2502 (KLR)
- Parties
- Appellant: Alpha Knits Ltd; Respondent: Wycliffe Wanjala Manyonge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal NO. 7 of 2004
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution Prior to Directions
- Outcome
- Application dismissed as premature; Deputy Registrar to issue notices under Order XLI Rule 31(2).
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Directions Stage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Alpha Knits Ltd
Appellant
Wycliffe Wanjala Manyonge
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution Prior to Directions
Legal Issues
- 1 Whether an appeal can be dismissed for want of prosecution before directions are taken under Order XLI of the Civil Procedure Rules.
- 2 Whether the respondent's application for dismissal is premature in the absence of directions.
Ratio Decidendi
The court held that since the appeal had not reached the directions stage as required by Order XLI Rule 31(1) of the Civil Procedure Rules, it could not be dismissed for want of prosecution on application by a party. The court further found that while the appellant had been lax in prosecuting the appeal, the proper procedure for dismissal for want of prosecution at this stage could only be initiated by the court itself under Order XLI Rule 31(2). Accordingly, the respondent's application was rejected as premature, and the Deputy Registrar was directed to issue notices in accordance with the relevant rule.
Court Disposition
Application dismissed as premature; Deputy Registrar to issue notices under Order XLI Rule 31(2).
Orders
- The chamber summons dated 31st March, 2006 is rejected.
- The Deputy Registrar is ordered to issue notices in accordance with Order XLI Rule 31(2) of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 704 OF 2002
ALPHA KNITS LTD……………………..……….APPELLANT
VERSUS
WYCLIFFE WANJALA MANYONGE…..…..RESPONDENT
R U L I N G
By a chamber summons dated 31st March, 2006, Wycliffe Wanjala who is the respondent in this appeal, seeks to have the appeal dismissed for want of prosecution, and the orders for stay of execution discharged. It is the respondent’s contention that the appellant has taken no steps to prosecute the appeal. For the appellant it was submitted that under Order XLI of the Civil Procedure Rules there is no power to dismiss an appeal for want of prosecution before directions are taken. It was therefore submitted that the application was premature as no directions had been taken.
Having perused this file it is apparent that the appellant was requested sometime in July 2006 to comply with Order XLI Rule 8B (4) of the Civil Procedure Rules in regard to the preparations of the record of appeal. To date, the appellant has taken no action. The matter cannot therefore be dealt with under Order XLI Rule 31 (1) of the Civil Procedure Rules as the appeal has not reached directions stage.
In view of the appellant’s apparent laxity, this would have been an appropriate matter for dismissal for want of prosecution under Order XLI Rule 31(2) of the Civil Procedure Rules. That rule however, can only be initiated by the court. For this reason I will reject the chamber summons dated 31st March, 2006 and order that the Deputy Registrar issue notices in accordance with Order XLI Rule 31 (2) of the Civil Procedure Rules. Those shall be the orders of this court.
Dated and delivered this 26th day of May, 2008
H. M. OKWENGU
JUDGE