[2014] KEHC 4523 (KLR)
The court found that directions had not been given in the appeal, which is a prerequisite for dismissal for want of prosecution under Order 42 Rule 35(1). The application was premised on Order 42 Rule 35(2), which only empowers the registrar, not a party, to fix the matter for dismissal. As such, the...
Source-derived case information.
- Citation
- [2014] KEHC 4523 (KLR)
- Parties
- Appellant: Dickson Maina Kibira; Respondent: David Ngari Makunyi
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 74 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Directions in Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Maina Kibira
Appellant
David Ngari Makunyi
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 under Order 42 Rule 35(2) of the Civil Procedure Rules.
- 2 Whether the respondent/applicant is entitled to seek dismissal before directions have been given.
Ratio Decidendi
The court found that directions had not been given in the appeal, which is a prerequisite for dismissal for want of prosecution under Order 42 Rule 35(1). The application was premised on Order 42 Rule 35(2), which only empowers the registrar, not a party, to fix the matter for dismissal. As such, the respondent/applicant's motion was premature and without merit. The court dismissed the application but ordered the appellant/respondent to take out directions within 30 days, failing which the appeal would stand dismissed with costs to the respondent.
Court Disposition
application dismissed
Orders
- The application to dismiss the appeal for want of prosecution is dismissed with no order as to costs.
- The appellant/respondent is ordered to take out directions on the appeal within 30 days, failing which the appeal shall stand dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL NO. 74 OF 2011
DICKSON MAINA KIBIRA…...................................................APPELLANT
Versus
DAVID NGARI MAKUNYI...................................................RESPONDENT
(Appeal arising from the Judgment of Hon. K. Cheruiyot
Resident Magistrate Nyeri in Civil Case No. 555 of 2005)
RULING
By a notice of motion dated 15th November 2011 the Respondent/Applicant under order 42 rule 35(2) and order 51 rule 1 of CPR moved this honourable court for orders:
That the appeal be dismissed with cost for want of prosecution.
The application was supported by the affidavit of CHARLES WAHOME GIKONYO wherein he deponed that the memorandum of appeal was filed on 23rd June 2011 and served on 4th July 2011 and since that time more than one (1) year the appeal has not been fixed down for hearing.
In reply thereto the applicant/respondent through Grace Mukuha filed a replying affidavit in which she deponed that the appeal was admitted in June last year and that the applicant has now compiled all the documents.
The appeal herein was filed on 23rd June 2011 and was admitted on 20th June 2013 and the record of appeal filed on 3rd March 2014. Directions have not been given herein and as I stated in the case of JOSEPH KIIRU GACHUKIA & ANOTHER v JOHN WAGURA IKIKI NYERI HIGH COURT CIVIL APPEAL NO. 130 OF 2010 the respondent can only move the court under order 40 rule 35(1) three (3) months after directions have been given.
Under order 42 rule 35(2) under which the application is premised it is only the registrar who can upon giving notice to the parties fix the matter before the judge for dismissal.
Since directions have not been given in this matter I find no merit on the application herein which I hereby dismiss with no order as to cost.
However taking into account the fact that litigation must come to an end I hereby order that the applicant/respondent take out directions on this appeal within the next 30 days failure of which the appeal shall stand dismissed with cost to the respondent.
Dated, signed and delivered at Nyeri this 13th day of June 2014.
J. WAKIAGA
JUDGE
Court: Ruling read in court in the presence of Mr. Ombongi and in the absence of Mr. Wahome.
J. WAKIAGA
JUDGE
13/6/2014