[2006] KEHC 2107 (KLR)
The court held that the application to dismiss the appeal for want of prosecution was premature because directions had not yet been taken in the appeal as required by Order 41 rule 31 of the Civil Procedure Rules. The rule stipulates that only after directions have been given and three months have elapsed without...
Source-derived case information.
- Citation
- [2006] KEHC 2107 (KLR)
- Parties
- Appellant: East Africa Spectre Ltd; Respondent: James Ndakala Akubalo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 184 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application struck out as premature
- Legal Topics
- Dismissal for Want of Prosecution, Directions in Appeals, Loss of Earning Capacity, General Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
East Africa Spectre Ltd
Appellant
James Ndakala Akubalo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the application to dismiss the appeal for want of prosecution was properly brought under the applicable Civil Procedure Rules.
- 2 Whether directions had been taken in the appeal as required before an application for dismissal could be entertained.
Ratio Decidendi
The court held that the application to dismiss the appeal for want of prosecution was premature because directions had not yet been taken in the appeal as required by Order 41 rule 31 of the Civil Procedure Rules. The rule stipulates that only after directions have been given and three months have elapsed without action by the appellant can the respondent move the court for dismissal. Since this procedural step had not occurred, the application was incompetent and could not stand. The court therefore struck out the application with costs to the appellant.
Court Disposition
application struck out as premature
Orders
- The application to dismiss the appeal for want of prosecution is struck out as premature.
- Costs of the application are awarded to the appellant.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 184 of 2004
EAST AFRICA SPECTRE LTD ……………....................................……….. APPELLANT
VERSUS
JAMES NDAKALA AKUBALO ……………....................................………RESPONDENT
(Being an Appeal from the Judgment and Decree of the chief Magistrate’s Court at Nairobi Milimani Commercial Courts in CMCC No.6635 of 2002 before Mr. Elkidy P.M. delivered on the 3rd March 2004).
RULING
I: BACKGROUND OF APPLICATION
1. An award was made to the respondent original/plaintiff by the magistrates court on tort in favour of the respondent. The appellant/original defendant found that the award given was in excessive on “general damages” and that the issue of “loss of earning capacity” had not been pleaded yet awarded.
2. The respondent/original defendant/appellant filed this appeal in question on 18. 3.04, 15 days after the judgment by the lower courts was delivered. They deposited the decreetal amount in Equity Bank.
3. The original plaintiff’s/respondent in the application and applicant in the application filed this present application seeking that this appeal be dismissed for lack of prosecution. The Application was first brought under order 16 r 5 Civil Procedure Rules. The applicant prior to hearing, amended this to read Order 41 r 31 Civil Procedure Rules that actually applies in the case of an appeal.
5. The advocate for the applicant deponed an affidavit that he was under pressure from his client to finalise this matter and obtain the decreetal amount due to his client. Letters to the chief Justice and law Society had been written of the delay.
6. In this instances an application for dismissal of an appeal for lack of prosecution can only be brought under order 41 r 31 Civil procedure Rules. This order requires that the appeal must first go for directions before the High Court. Three months after the giving of directions and no action has been taken by the appellant, then the other party may move the court to have the appeal dismissed.
7. In this appeal no directions has been taken. The application before me is therefore premature and cannot stand. The same is hereby struck out with costs to the appellant.
Dated his 18th day of May 2006 at Nairobi.
M.A. ANG’AWA
JUDGE
Onyancha Bw’omote & Co. Advocates for the appellant/applicant
Kimani & Michuki Advocates for the respondent