[2007] KEHC 2465 (KLR)
The court held that since no directions had been taken in terms of Order XLI rule 8B of the Civil Procedure Rules, it was not possible to grant an order for dismissal of the appeal for want of prosecution under Order XLI rule 31. The procedural framework requires that directions be given before an application for...
Source-derived case information.
- Citation
- [2007] KEHC 2465 (KLR)
- Parties
- Appellant: Daniel Mburugu; Respondent: Stanley K. Mwithimbu
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 1997
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- I Lenaola
- Legal Topics
- Dismissal for Want of Prosecution, Directions Under Order Xli, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Mburugu
Appellant
Stanley K. Mwithimbu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution in the absence of directions under Order XLI rule 8B.
- 2 Whether the court can grant orders under Order XLI rule 31 without prior directions.
Ratio Decidendi
The court held that since no directions had been taken in terms of Order XLI rule 8B of the Civil Procedure Rules, it was not possible to grant an order for dismissal of the appeal for want of prosecution under Order XLI rule 31. The procedural framework requires that directions be given before an application for dismissal can be entertained. The court relied on its reasoning in a related appeal (HCCA 61/97), emphasizing that the absence of directions is fatal to the application. Consequently, the application was dismissed, and each party was ordered to bear its own costs.
Court Disposition
application dismissed
Orders
- The application dated 26.4.2007 is dismissed.
- Each party to bear its own costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
Civil Appeal 59 of 1997
DANIEL MBURUGU…….…........…….……..…….. APPELLANT/REPONDENT
VERSUS
STANLEY K. MWITHIMBU……………….....……RESPONDENT/APPLICANT
R U L I N G
The Application dated 26. 4.2007 seeks orders that the Appeal herein be dismissed for want of prosecution.
The reasons are set out in a Ruling delivered simultaneously with a related Appeal and dismissed i.e. HCCA 61/97. A Similar application as the instant one was argued in that Appeal.
For the reasons therefore given in the Ruling within HCCA 61/97 viz that no directions in terms of Order XLI rule 8B were taken then no orders under Order XLI rule 31 can be granted.
I shall dismiss the Application with further orders that each party should bear its own costs and will further order that the Ruling in HCCA 61/97 be placed as part of the record in this Appeal.
Orders accordingly.
Dated signed and delivered this 24th Day of July 2007.
ISAAC LENAOLA
JUDGE
In the presence
Mr. Onyambu Advocate for the Appellant
N/A Advocate for the Respondent
ISAAC LENAOLA
JUDGE