[2011] KEHC 1758 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for over ten years since the memorandum of appeal was served. Under Order XLI Rule 31(2) of the Civil Procedure Rules, the registrar is mandated to list such appeals for dismissal. The applicant demonstrated that the statutory...
Source-derived case information.
- Citation
- [2011] KEHC 1758 (KLR)
- Parties
- Appellant: Concorde Container Services Ltd; Respondent: Francis Ndungu Wainaina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 744 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Employer Liability, Personal Injury, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Concorde Container Services Ltd
Appellant
Francis Ndungu Wainaina
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction for over 12 months after service of the memorandum of appeal.
- 2 Whether the deposited decreetal sum should be released to the respondent/original plaintiff upon dismissal of the appeal.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for over ten years since the memorandum of appeal was served. Under Order XLI Rule 31(2) of the Civil Procedure Rules, the registrar is mandated to list such appeals for dismissal. The applicant demonstrated that the statutory period had lapsed without action, and the appellant was not present or represented. The court therefore granted the application, dismissed the appeal for want of prosecution, and ordered that the decreetal sum deposited in court as security be released to the respondent/original plaintiff. Costs were awarded to the respondent in both the High Court and subordinate court.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- The decreetal sum deposited in court is to be released to the respondent/original plaintiff.
Full Case Text
Judgment text and source record
58 paragraphs
1. Civil Appeal
2. Civil Practice & Procedures
3. Subject of Subordinate court case:-
a.TORT/contract
b.Employee run down by employers motor vehicle
c.Award:
i. Liability 50%
ii. General damages Kshs. 300,000/=
iii. Special damages kshs.180,513. 10
4. Appeal
i.Employer appeals (25 October 2001)
5. Stay of execution:
i.Stay of execution granted (Aganyanya J. 18 April 2004) on condition decreetal sum of 50% is deposited to court.
6. Application:
i.Registrar to list appeal before Hon. Judge for dismissal (27 January 2010)
ii.Appellant served through registered post with leave of the court (Deputy Registrar)
iii.Reasons: No action taken on the appeal.
7. Held:
i.Application granted
ii.Appeal dismissed
iii.Security deposited be released to appellant/respondent
8. Case Law
9. Advocates
i.Kimani Githongo instructed by M/s Kimani Githongo & Co. Advocates for the Respondent/Appellant/original defendant-absent
ii.J. K. M Gichachi instructed by M/s Gichachi & Co. Advocates for the Applicant/Respondent/Original Plaintiff - Present
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO.744 OF 2001
CONCORDE CONTAINERSERVICES LTD……….................………….RESPONDENT/APPELLANT/ORIGINAL DEFENDANT
VERSUS
FRANCIS NDUNGUWAINAINA………….............................….APPLICANT/RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal from the order and decree of J. O. Kanyangi Esq, Senior Principal Magistrate dated 11th October, 2001 in RMCC No. 3657 of 1999 at Milimani Commercial Courts)
RULING
(Dismissal of appeal for want of prosecution
Order XLI Rule 32(2) Civil Procedure Rules)
I.INTRODUCTION
1. Under Order XLI Rule 31(2) Civil Procedure Rules (former) states:
“If within one year after the serve of the memorandum of appeal, the appeal shall not have been set down for hearing the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.
2. This rule remained identical under the Civil Procedure Rules of 2010. Section 81 of the civil Procedure Act Cap 21 Laws of Kenya.
3. The applicant/respondent/original plaintiff brought an application dated 18 January 2010 and filed on the 27 January 2010 seeking for orders that the Registrar of the High Court of Kenya place this file before the Hon. Judge for dismissal of the appeal for 12 months no action had been taken on the appeal.
II.BACKGROUND
4. The original subordinate Court case concerned TORT/contract. The applicant/respondent/original Plaintiff sued his employer when a vehicle owed by his employer accidentally ran him down due to a faulty hand break and a battery that was unserviceable. He was pinned between that vehicle and another when the vehicle moved on its own. The cause of action arose on 16 June 1998.
5. The trial Magistrate gave an award for injuries sustained at Kshs. 300,000/=. Special Damages was awarded at Kshs.180,513. 10. Liability was put at 50%. The employer being dissatisfied with this award filed an appeal. On 25 October 2001, from the award judgment of 21 March 2001, his arguments being that Special Damages should have been apportioned at 50%.
6. The High Court permitted an application for stay of execution on condition that the decreetal sum is deposited to court (Aganyanya J, as he then was) (16 April 2002).
7. The Appellants took no action in this appeal. It is believed that the appellants company no longer exists and they were not traced. The applicant/respondent/original plaintiff applied for substitutive service under Order V and under Order XLIII Rule 5(1)(ii) Civil Procedure Rules (formerly) and now Order 49 Rule 7(1)(iii) Civil Procedure Rule through the Deputy Registrar who is bestowed with ministerial powers under that rule to grant such orders.
8. The file was placed before this court on 30 May 2011 for interparte hearings.
III.APPLICATION 18 JANUARY 2011
Filed on 27 January 2010
9. The applicant demonstrated to this court that no action has been taken for 12 months after service of the Memorandum of Appeal.
IV.FINDINGS
10. The application to have the appeal dismissed for want of prosecution for the last 10 years is herby granted. That the decreetal sum so ordered to be deposited to court be and is hereby ordered released to the respondent/original plaintiff in this appeal.
11. There will be costs to the respondent/original plaintiff in this court and in the Subordinate Courts.
RULING DATED THIS 3RD DAY OF JUNE 2011 AT NAIROBI
M. A. ANG’AWA
JUDGE
Advocates
i.Kimani Githongo instructed by M/s Kimani Githongo & Co. Advocates for the Appellant/original defendant-absent
ii.J. K. M Gichachi instructed by M/s Gichachi & Co. Advocates for the Applicant /Respondent /Original Plaintiff - Present