[2014] KEHC 1136 (KLR)
The court found that the respondent's application for dismissal of the appeal for want of prosecution was fatally defective because it failed to disclose the date of service of the memorandum of appeal. The date of service is a critical fact, as the one-year period under Order 42, rule 35(2) of the Civil Procedure...
Source-derived case information.
- Citation
- [2014] KEHC 1136 (KLR)
- Parties
- Appellant: Dickson Mutuma Kiruthu; Respondent: Emily Wanjiku Mutero
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 204 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the appellant
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Dickson Mutuma Kiruthu
Appellant
Emily Wanjiku Mutero
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 under Order 42, rule 35(2) of the Civil Procedure Rules, 2010.
- 2 Whether the failure to disclose the date of service of the memorandum of appeal is fatal to the respondent's application.
Ratio Decidendi
The court found that the respondent's application for dismissal of the appeal for want of prosecution was fatally defective because it failed to disclose the date of service of the memorandum of appeal. The date of service is a critical fact, as the one-year period under Order 42, rule 35(2) of the Civil Procedure Rules, 2010, is calculated from the date of service. The respondent's assertion that service occurred on 19th May 2013 was untenable, as the memorandum of appeal was filed on 20th June 2013. Without proper disclosure of the service date, the court could not determine whether the statutory period had lapsed, and therefore the application could not succeed. The application was...
Court Disposition
application dismissed with costs to the appellant
Orders
- The application for dismissal of the appeal for want of prosecution is dismissed.
- Costs awarded to the appellant.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT MURANG’A
CIVIL APPEAL NO 204 OF 2013
DICKSON MUTUMA KIRUTHU...................………….APPELLANT
VERSUS
EMILY WANJIKU MUTERO……………………………RESPONDENT
R U L I N G
1. The appeal herein is against a money decree of the lower court. Apparently the Appellant obtained conditional stay of execution pending appeal, and he met the conditions. The memorandum of appeal was filed on 20th June 2013.
2. On 25th August 2014 the Respondent in the appeal applied by notice of motion dated 22nd August 2014 for dismissal of the appeal for want of prosecution. That application is the subject of this ruling. It is brought under Order 42, rule 35 of the Civil Procedure Rules, 2010 (the Rules). At the hearing of the application learned counsel for the Respondent clarified that the application is brought under sub-rule (2) of the said rule. The Appellant has opposed the application by his replying affidavit filed on 13th November 2014.
3. I have considered the submissions of the learned counsels appearing. No authorities were cited.
4. Rule 35(2) provides -
“If, within one year after the service 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”.
A respondent in an appeal can certainly apply under this rule as the effect of such application will be to place the appeal before a judge for dismissal on notice to the parties.
5. The operating date in an application for dismissal under rule 35(2) is the date of service of the memorandum of appeal. In the present case this date is not stated in the supporting affidavit. Learned counsel for the Respondent stated at the hearing that the memorandum of appeal was served upon the Respondent on 19th May 2013. But this cannot be because the memorandum of appeal was filed on 20th June 2013!
6. This application must therefore fail upon the simple ground that the date of service of the memorandum of appeal is not disclosed. It is hereby dismissed with costs to the Appellant. It is so ordered.
DATED SIGNED AND DELIVERED AT MURANG'A THIS 5TH DAY OF DECEMBER 2014
H.P.G.WAWERU
JUDGE