[2015] KEHC 7365 (KLR)
The court found that the appellant, after obtaining a stay of execution and partially settling the decretal sum, failed to take any further steps to prosecute the appeal. The application to strike out or dismiss the appeal was unopposed, and the facts as deponed in the supporting affidavit were not controverted. The...
Source-derived case information.
- Citation
- [2015] KEHC 7365 (KLR)
- Parties
- Appellant: Balozi Housing Co-op Society Ltd; Respondent: Joseph Kiarie
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 669 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out or Dismiss Appeal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution. Application allowed. Costs awarded to respondent.
- Judges
- A Mabeya
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Striking Out, Stay of Execution, Settlement of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Balozi Housing Co-op Society Ltd
Appellant
Joseph Kiarie
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out or Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be struck out or dismissed for want of prosecution.
- 2 Whether the appellant took any steps to prosecute the appeal after filing the record of appeal.
- 3 Whether partial settlement of the decretal sum and obtaining a stay of execution affect the prosecution of the appeal.
Ratio Decidendi
The court found that the appellant, after obtaining a stay of execution and partially settling the decretal sum, failed to take any further steps to prosecute the appeal. The application to strike out or dismiss the appeal was unopposed, and the facts as deponed in the supporting affidavit were not controverted. The court held that the application was meritorious and allowed it in terms of the prayers sought, awarding costs to the respondent/applicant. The essential legal principle is that failure to prosecute an appeal after filing the record of appeal, especially when unopposed, justifies dismissal for want of prosecution under the Civil Procedure Rules.
Court Disposition
Appeal dismissed for want of prosecution. Application allowed. Costs awarded to respondent.
Orders
- The appeal is dismissed for want of prosecution.
- Costs of the motion and appeal are awarded to the respondent/applicant.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURT
CIVIL APPEAL NO. 669 OF 2009
BALOZI HOUSING CO-OP SOCIETY LTD........APPELLANT
VERSUS
JOSEPH KIARIE................................................RESPONDENT
(Appeal from the original ruling of Hon. Kiema, Resident Magistrate delivered in, CMCC No. 1225 of 2008 at Milimani Commercial Courts. On 19th November, 2009)
RULING
By a Motion on Notice dated 29/1/2014, the Respondent has applied to have the appeal struck out or in the alternative dismissed for want of prosecution. The application was brought under Order 2 Rule 15(1) (b) and (d) and Order 42 Rule 11, 13 and 35 (2) of the Civil Procedure Rules. The grounds upon which the application was premises were set out in the body of the motion and Supporting Affidavit of James Rimui sworn on 29/1/2014.
It was contended that the Appellant had agreed to settle the decretal sum before filing the appeal; that pursuant thereto, the Appellant issued two cheques for Kshs.200,000/- and Kshs.202,427/- respectively towards settlement of the decretal sum. The copies of the cheques were exhibited as “JR3”. That whilst the first cheque was encashed, the Appellant obtained a stay of execution before the second was paid. A sum of Kshs.264,836/85 was ordered deposited as security. That the Record of Appeal was filed on 25/8/11 but to date no step has been taken to prosecute the appeal.
I have considered the Affidavit on record and submission of Counsel. There was no reply to contradict or controvert the averments in the Supporting Affidavit although the application was served. An advocate held brief for counsel for the Appellant to apply for adjournment but when the same was declined, he disappeared. The application remained unopposed. Looking at what is deponed to in the detailed Affidavit of James Rimui, one cannot get a feeling that the application is indefensible. The Memorandum of Appeal raises only two grounds. The Appellant had partly paid the decretal sum. After it got the stay order it went to slumber.
In my view, I find the application to be meritorious. I allow the application in terms of prayer Nos. 2 and 3 of the Motion. I also award the costs of the Motion and appeal to the Respondent/Applicant.
It is so ordered.
DATED and DELIVERED at Nairobi this 12th day of June, 2015.
...................................
A. MABEYA
JUDGE