[2014] KEHC 4372 (KLR)
The court found that the appellant had not taken any steps to prosecute the appeal for over two years after directions were given and hearings were scheduled but not concluded. The appellant failed to provide any explanation for the delay, did not file any opposition to the application, and at the hearing, counsel...
Source-derived case information.
- Citation
- [2014] KEHC 4372 (KLR)
- Parties
- Appellant: Avenue Service Station (1977) Ltd; Respondent: Securicor Security Service (K) Ltd; Respondent: Swaleh Abiero
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 893 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Avenue Service Station (1977) Ltd
Appellant
Securicor Security Service (K) Ltd
Respondent
Swaleh Abiero
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(1) of the Civil Procedure Rules, 2010.
- 2 Whether the appellant has provided any explanation for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not taken any steps to prosecute the appeal for over two years after directions were given and hearings were scheduled but not concluded. The appellant failed to provide any explanation for the delay, did not file any opposition to the application, and at the hearing, counsel had no submissions to make. The court concluded that the appellant had lost interest in the appeal and that there was no justification for allowing the matter to remain pending. Accordingly, the appeal was dismissed for want of prosecution under Order 42, rule 35(1) of the Civil Procedure Rules, 2010, with costs to the respondents.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 893 OF 2005
AVENUE SERVICE STATION (1977) LTD......................APPELLANT
VERSUS
1. SECURICOR SECURITY SERVICE (K) LTD
2. SWALEH ABIERO..............................................RESPONDENTS
R U L I N G
1. This is an application (chamber summons dated 22nd October 2013) by the Respondents for dismissal of the appeal for want of prosecution under Order 42, rule 35(1) of the Civil Procedure Rules, 2010 (the Rules). Under that subrule, unless within three months after the giving of directions under rule 13 of the Order the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
2. The Respondents also rely on the inherent power of the court.
3. I have considered the submissions of the learned counsels appearing. I have also perused the court record.
4. Directions under rule 13 aforesaid were given on 22nd June 2011. Thereafter the appeal was fixed for hearing for 14th September 2011. On that day it appears not to have been listed. It was again fixed for hearing for 7th December 2011. It was not heard for reasons appearing on the record. It is the Respondents’ case that since that date the Appellant has not taken any steps to prosecute the appeal, a delay of over two (2) years since the present application was filed on 23rd January 2014.
5. The Appellant has not offered any explanation for the delay, notwithstanding that the application was served on 4th March 2014. No grounds of opposition or replying affidavit was filed. At the hearing of the application learned counsel for the Appellant stated that she had no point of law to raise.
6. Given the Appellant’s lack of response to the application at hand, it is apparent that it has lost interest in its appeal. There is no reason why it should continue to hang over the heads of the Respondents.
7. In the event the appeal is dismissed with costs for want of prosecution. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 20TH DAY OF MAY 2014
H.P.G.WAWERU
JUDGE
DELIVERED THIS 27TH DAY OF MAY 2014