[2008] KEHC 3612 (KLR)
The court found that although the procedural rules do not expressly provide for dismissal of an appeal for want of prosecution where the appellant has not served the Memorandum of Appeal or taken directions, the court is not constrained by such omissions when it is clear that a party is abusing the process. The...
Source-derived case information.
- Citation
- [2008] KEHC 3612 (KLR)
- Parties
- Appellant: Elishipha Wanjiku Thiongo; Respondent: Timothy Muchina Chege; Respondent: Charles Wachira Chege; Respondent: James Mugi Chege
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; conditional orders issued to appellant.
- Judges
- MM Kasango
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Service of Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Elishipha Wanjiku Thiongo
Appellant
Timothy Muchina Chege
Respondent
Charles Wachira Chege
Respondent
James Mugi Chege
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 due to the appellant's failure to serve the record of appeal and take steps to fix the appeal for hearing.
- 2 Whether the absence of directions precludes dismissal for want of prosecution.
- 3 Whether the court can invoke its inherent jurisdiction to prevent abuse of process in the absence of explicit procedural provisions.
Ratio Decidendi
The court found that although the procedural rules do not expressly provide for dismissal of an appeal for want of prosecution where the appellant has not served the Memorandum of Appeal or taken directions, the court is not constrained by such omissions when it is clear that a party is abusing the process. The court held that it may invoke its inherent jurisdiction under section 3A of the Civil Procedure Act to prevent abuse of process. The appellant's failure to serve the record of appeal and take steps to fix the appeal for hearing demonstrated a lack of diligence. However, the court exercised its discretion to give the appellant a final opportunity to comply by serving the record of...
Court Disposition
Application for dismissal for want of prosecution declined; conditional orders issued to appellant.
Orders
- The appellant shall serve the respondent with a record of appeal within seven days from the date of the ruling.
- The appeal is to be heard at Nyeri for half a day.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 59 of 2006
ELISHIPHA WANJIKU THIONGO……………………………..... APPELLANT
VERSUS
1. TIMOTHY MUCHINA CHEGE
2. CHARLES WACHIRA CHEGE
3. JAMES MUGI CHEGE..………………...................……… RESPONDENTS
RULING
The respondent in the appeal has brought a Chamber Summons dated 1st February 2008. It seeks the dismissal of the appeal for want of prosecution. It is contended on behalf of the respondent that since the filing of the Memorandum of Appearance on 13th July 2006 the appellant has not served the same on the respondent to date. That the registrar served a notice to the appellant to fix the appeal for hearing. That it does seem that the appellant has lost interest in his appeal and since the matter has been pending before court since year 2004 the same should be dismissed for want of prosecution. The appellant in the replying affidavit stated that the application was frivolous and an abuse of the court process. That the respondent had used the wrong provisions in filing the present application. That since directions had not been given in this appeal there has not been delay in fixing the appeal for hearing.
The Memorandum of Appearance was filed on 13th July 2006. The record of appeal was filed on 4th October 2007. It is clear from the Lower Court’s file that the proceedings were ready for collection by at least 29th December 2006. Order XLI rule 31(1) provides that where directions are given in an appeal and where no action is taken within three months a party can apply for the dismissal of appeal for want of prosecution. Sub-rule 2 of that order provides that within one year after the service of the Memorandum of Appellant and the appellant fails to fix the appeal for hearing the registrar on notice to the party shall list the appeal before a judge in chambers for the dismissal of the appeal. From the above rules it is clear that there is no provision for a situation where a party who does not serve the Memorandum of Appeal and does not take out directions. Clearly the court cannot be straight jacketed by such rules where it is clear that a party is abusing the process by hiding behind the rules. In other words the appellant cannot be heard to say that the appeal cannot be dismissed for want of prosecution because directions have not been given. Even where directions are not given the court can invoke its inherent jurisdiction to stop the abuse of the process of the court. The respondent in this case was correct in going under section 3A of the Civil Procedure Act in the present application. The appellant even having been served with the present application made no effort to try and get a hearing date for directions in this matter. The court however will give the appellant an opportunity to prove that she is serious with her appeal and in that regard the court grants the following orders:-
1. The appellant shall serve the respondent with a record of appeal hereof within seven days from this date hereof.
2. The court does direct that the appeal be heard at Nyeri for half a day.
3. In default of the appellant serving the record of appeal on the respondent within seven days as stated in No. 1 above the respondent is granted leave to seek the dismissal of the appeal for non confirmative to that order.
4. The appeal is fixed for hearing on 16th June 2008.
Dated and delivered at Nyeri this 5th day of May 2008.
MARY KASANGO
JUDGE