[2007] KEHC 2496 (KLR)
The court held that the application to dismiss the appeal for want of prosecution was premature because directions under Order XLI Rule 8B of the Civil Procedure Rules had not been given. The court emphasized that, procedurally, dismissal for want of prosecution can only be entertained after such directions are...
Source-derived case information.
- Citation
- [2007] KEHC 2496 (KLR)
- Parties
- Applicant: Charles Ndumu Wanyoike; Respondent: Gerald Muchiri Ndirangu; Respondent: Timothy Kogi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 52 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application struck out
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Directions Under Order Xli, Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Ndumu Wanyoike
Applicant
Gerald Muchiri Ndirangu
Respondent
Timothy Kogi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal can be dismissed for want of prosecution before directions are given under Order XLI Rule 8B of the Civil Procedure Rules.
- 2 Whether the respondent is entitled to dismissal of the appeal given the procedural posture.
Ratio Decidendi
The court held that the application to dismiss the appeal for want of prosecution was premature because directions under Order XLI Rule 8B of the Civil Procedure Rules had not been given. The court emphasized that, procedurally, dismissal for want of prosecution can only be entertained after such directions are issued. Since this prerequisite had not been met, the court struck out the application. However, recognizing the apparent lack of interest by the appellant and the respondent's frustration, the court directed the Deputy Registrar to issue notice to the appellant under Order XLI Rule 31(2), thereby ensuring procedural fairness and compliance with the Civil Procedure Rules.
Court Disposition
application struck out
Orders
- The Notice of Motion dated 10th June 2006 is struck out and costs shall be in the cause.
- The Deputy Registrar of this Court shall give notice to the parties in accordance with Order XLI Rule 31(2).
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 52 of 2003
CHARLES NDUMU WANYOIKE……………..... APPLICANT/RESPONDENT
Versus
GERALD MUCHIRI NDIRANGU……....…..1ST RESPONDENT/APPELLANT
TIMOTHY KOGI………………………….....2ND RESPONDENT/APPELLANT
(An appeal from the Judgment of the Nyeri Chief Magistrate Kaburu Bauni dated 26th March 2003 in Nyeri CMCC NO. 739 of 2002)
RULING
By a Notice of Motion dated 7th March 2005 the Respondent sought the dismissal of this appeal for want of prosecution. By a ruling dated 13th July 2005 the court found that the appeal had not yet been admitted and therefore rejected the prayer for dismissal for want of prosecution. The appeal was admitted on 13th February 2006. By the present application by way of Notice of Motion dated 10th June 2006, the Respondent again seeks the dismissal of this present appeal for want of prosecution. The Appellant though served did not attend the hearing. I however find that the orders sought by the Respondent cannot be granted because Order XLI Rule 31(1) of the Civil Procedure Rules requires that before such an application is entertained that directions be given as required by Order XLI Rule 8B. Such directions have not been given in this matter and accordingly the Court cannot grant the prayers sought. However I am alive to the fact that it does seem that the Appellant has lost interest in this matter and accordingly I will require the Deputy Registrar of this Court to give notice to the Appellant in accordance with Order XLI Rule 31(2) of the Civil Procedure Rules. That notice should be given as a matter of priority for indeed it does seem that the Respondent has been frustrated by the non activity of the Appellant in this matter. These then are the orders of this Court.
1. That the Notice of Motion dated 10th June 2006 is struck out and the costs therefore shall be in the cause.
2. The Deputy Registrar of this Court shall give notice to the parties in accordance with Order XLI Rule 31(2).
Dated and delivered at Nyeri this 27th day of July 2007.
MARY KASANGO
JUDGE