[2019] KEHC 7092 (KLR)
The court found that the appeal had not yet been admitted for hearing and no directions had been given under the relevant provisions of the Civil Procedure Act and Civil Procedure Rules. The Appellant was not at fault for the delay, as the practice at Milimani Law Courts is for the Deputy Registrar to issue notices...
Source-derived case information.
- Citation
- [2019] KEHC 7092 (KLR)
- Parties
- Appellant: Edwin Ngaira Lukulu; Respondent: Alex Mutindi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 445 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- CM Kamau
- Legal Topics
- Dismissal for Want of Prosecution, Directions Under Order 42, Appeal Admission, Record of Appeal Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edwin Ngaira Lukulu
Appellant
Alex Mutindi
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 before directions have been given under Section 79B of the Civil Procedure Act and Order 42 Rule 13 of the Civil Procedure Rules.
- 2 Whether the Appellant is responsible for listing the appeal for directions in the circumstances of the Milimani Law Courts.
- 3 Whether dismissing the appeal at this stage would contravene the Appellant's right to access to justice under Article 50 of the Constitution.
Ratio Decidendi
The court found that the appeal had not yet been admitted for hearing and no directions had been given under the relevant provisions of the Civil Procedure Act and Civil Procedure Rules. The Appellant was not at fault for the delay, as the practice at Milimani Law Courts is for the Deputy Registrar to issue notices for directions. Dismissing the appeal at this stage would be premature and would unjustly deny the Appellant access to justice, contrary to Article 50 of the Constitution. Therefore, the application to dismiss the appeal for want of prosecution was dismissed.
Court Disposition
application dismissed
Orders
- The Respondent’s Notice of Motion application dated 25th March 2019 is dismissed as premature.
- The Appellant is directed to file and serve the Record of Appeal within sixty (60) days from the date of the ruling, by 15th July 2019.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO 445 OF 2017
EDWIN NGAIRA LUKULU..................................APPELLANT
VERSUS
ALEX MUTINDI..................................................RESPONDENT
RULING
INTRODUCTION
1. The Appellant’s Notice of Motion application dated 25th March 2019 and filed on 27th March 2019 and filed on 27th March 2019 supported by the Affidavit of Amos Ogutu Wandago that was sworn on 25th March 2019 seeks to dismiss the Appellant’s appeal for want of prosecution.
2. It is opposed. The Appellant filed Grounds of Opposition dated 10th April 2019 on 11th April 2019. The Replying Affidavit of Felix Momanyi was sworn on 5th April 2019 and filed on 11th April 2019.
3. Having heard oral submissions by the counsel for the Appellant and counsel for the Respondent, the court notes that directions under Section 79B of the Civil Procedure Act Cap 21 (Laws of Kenya) are yet to be given. Directions have also not been given under Order 42 Rule 13 of the Civil Procedure Rules, 2010.
4. Although the Civil Procedure Rules mandates the Appellant to list the appeal before the judge under Order 42 Rule 13 of the Civil Procedure Rules, in the Civil Division Milimani Law Courts, the Deputy Registrar has been issuing the notices for parties to take directions of the Appeal. The Appellant does not seem to have a role in the taking of the directions under Order 42 Rule 13 of the Civil Procedure Rules.
5. The two (2) scenarios envisaged for dismissal of the Appeal do not apply in this case as the Appeal has not been set down for hearing and the Appellant failed to prosecute his case and the Registrar has also not set down the appeal for dismissal.
6. As the Appeal herein is yet to be admitted for hearing and no directions have been given, it is the considered opinion of this court that allowing this application will be shutting out the Appellant from accessing court contrary to the provisions of Article 50 of the Constitution of Kenya, 2010.
DISPOSITION
7. Accordingly, I hereby dismiss the Respondent’s Notice of Motion application dated 25th March 2019 and filed on 27th March 2019 as it was premature.
8. I hereby direct that the Appellant files and serves its Record of Appeal within sixty (60) days from today i.e by 15th July 2019.
9. In the event the Decree will have been certified and the Appellant fails to file his Appeal with the time stipulated, the Appeal will stand as automatically dismissed.
10. Costs of the application will be in the cause. Either party is at liberty to apply.
11. Orders accordingly.
DATED and DELIVERED at NAIROBI this 13th day of May 2019
J. KAMAU
JUDGE