[2014] KEHC 1761 (KLR)
The court found that no directions had been taken in the appeal as required under Order 42 of the Civil Procedure Rules. Since the respondent's application for dismissal was brought before directions were taken, it was premature. The court held that only the registrar, not the respondent, could move the court for...
Source-derived case information.
- Citation
- [2014] KEHC 1761 (KLR)
- Parties
- Respondent: Eliud Maina Theuri; Appellant: Danson Mwaura Mwangi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 309 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution
- Outcome
- application struck out as premature
- 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
Eliud Maina Theuri
Respondent
Danson Mwaura Mwangi
Appellant
Procedural Posture
Civil Appeal / Ruling on Motion 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(1) of the Civil Procedure Rules.
- 2 Whether the application to dismiss the appeal is premature due to lack of directions being taken.
Ratio Decidendi
The court found that no directions had been taken in the appeal as required under Order 42 of the Civil Procedure Rules. Since the respondent's application for dismissal was brought before directions were taken, it was premature. The court held that only the registrar, not the respondent, could move the court for dismissal of the appeal at this stage. Consequently, the application was struck out as procedurally improper.
Court Disposition
application struck out as premature
Orders
- The notice of motion dated 31st December, 2012 is struck out.
- No orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 309 OF 2006
ELIUD MAINA THEURI………………………….……RESPONDENT/APPLICANT
VERSUS
DANSON MWAURA MWANGI……………..…..….APPELLANT/RESPONDENT
RULING
The respondent/applicant (‘the respondent’) has filed the notice of motion dated 31st December, 2012. He prays that the appellant/respondent’s (‘the appellant’) appeal be dismissed for want of prosecution. The application is expressed to be brought under order 42 rule 35(1) of the Civil Procedure Rules2010and section 3A of the Civil Procedure Act (Cap 21) Laws of Kenya.
The gist of the application is that the appellant has neither prepared a record of appeal nor prosecuted the appeal yet the appeal was filed way back on 16th May, 2006.
The application is unopposed. I have depositions in the application and I am of the following opinion that what falls for this court’s consideration is whether or not the delay in prosecuting this appeal is inexcusable and inordinate.
A perusal of this file reveals that no directions have been taken in this appeal. The applicable provision is order 42 Rule 35(2) of the Civil Procedure Rules. The aforementioned provision can only be invoked by the registrar and not the respondent in this appeal.
I find the motion brought under Order 42 Rule 35 (1) to be premature since no directions were taken prior to filing of this motion.
The motion is ordered struck out with no orders as to costs.
Dated, Signed and delivered in open court this 7thof November, 2014.
J.K.SERGON
JUDGE
In the presence of:
N/A for the Appellant
Ombete h/b for Mwangi for the Respondent