[2009] KEHC 4211 (KLR)
The court held that the respondent's application for dismissal of the appeal for want of prosecution was premature because no directions had been given under Order XLI Rule 8B, as the appellant had not filed the required record of appeal. However, the court found that the appellant's failure to file the necessary...
Source-derived case information.
- Citation
- [2009] KEHC 4211 (KLR)
- Parties
- Appellant: Booth Manufacturers Co. Ltd; Respondent: David Nganga Kienje
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 951 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- conditional dismissal of appeal unless record of appeal filed within 30 days
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Directions Under Order Xli, Record of Appeal Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Booth Manufacturers Co. Ltd
Appellant
David Nganga Kienje
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 where no directions have been given under Order XLI Rule 8B of the Civil Procedure Rules.
- 2 Whether the respondent's application for dismissal is premature in the absence of directions.
- 3 Whether the appellant's failure to file the record of appeal constitutes an abuse of court process.
Ratio Decidendi
The court held that the respondent's application for dismissal of the appeal for want of prosecution was premature because no directions had been given under Order XLI Rule 8B, as the appellant had not filed the required record of appeal. However, the court found that the appellant's failure to file the necessary documents for over five years amounted to an abuse of the court process. Consequently, the court ordered that unless the appellant files a record of appeal containing all appropriate documents within 30 days, the appeal shall stand dismissed. This approach balances the procedural requirements with the need to prevent undue delay and abuse of process.
Court Disposition
conditional dismissal of appeal unless record of appeal filed within 30 days
Orders
- Unless a record of appeal containing all appropriate documents is filed within 30 days from the date hereof, the appeal herein shall stand dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 951 of 2004
BOOTH MANUFACTURERS CO. LTD……….APPELLANT
VERSUS
DAVID NGANGA KIENJE...………………….RESPONDENT
R U L I N G
1. On 9th March, 2004, a Principal Magistrate in Thika Law Courts awarded general and special damages in favour of the respondent, David Nganga Kienje as against the appellant, Booth Manufacturers Co. Ltd.
2. Being dissatisfied the appellant filed a memorandum of appeal on 4th November, 2004. More than 5 years down the line, the appellant has taken no further action in that appeal. The respondent has now brought an application under Order XLI Rule 31(2) of the Civil Procedure Rules, seeking to have the appeal dismissed for want of prosecution.
3. The appellant objects to the application contending that the application is premature as no directions have been given by the court under Order XLI Rule 8B of the Civil Procedure Rules.
4. It is true that under Order XLI Rule 31(1) of the Civil Procedure Rules, a respondent to an appeal can only apply for a dismissal of an appeal for want of prosecution where the appeal has not been set down for hearing more than 3 months after giving of directions under Order XLI Rule 8B of the Civil Procedure Rules. In this case, directions have not been given as the appellant has not filed a record of appeal or any other documents required under Order XLI Rule 8B(4) of the Civil Procedure Rules .
5. The proper procedure would have been for the Registrar of this court to place the appeal before me for dismissal under Order XLI Rule 31(2) of the Civil Procedure Rules. That has unfortunately not been done, and it is therefore not surprising that the respondent out of desperation has now sought to move the court. The appellant has not offered any explanation for the failure to provide the necessary documents.
6. That being the position, the appeal before this court is an abuse of the process of the court and I would accordingly order that unless a record of appeal containing all appropriate documents is filed within 30 days from the date hereof, the appeal herein shall stand dismissed.
Those shall be the orders of this court.
Dated and delivered this 4th day of June, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Advocate for the appellant absent
Respondent present in person
Court clerk - Njihia