[2016] KEHC 6674 (KLR)
The court found that the appellants had failed to set down the appeal for hearing more than a year after directions were given, with no explanation for their inaction. The only response from the appellants was a concession that the appeal was now academic due to resolution of the dispute. The court held that the...
Source-derived case information.
- Citation
- [2016] KEHC 6674 (KLR)
- Parties
- Appellant: Erastus Mbeu; Appellant: Mary Wanjugu; Appellant: Benson Gichohi Ngure; Respondent: Joseph Nderitu Nganga
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 211 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution; costs awarded to the applicant.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Directions Under Order 42, Failure to Prosecute, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erastus Mbeu
Appellant
Mary Wanjugu
Appellant
Benson Gichohi Ngure
Appellant
Joseph Nderitu Nganga
Respondent
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 appellants have provided any justification for not setting down the appeal for hearing after directions were given.
- 3 Whether the respondent is entitled to costs of the application and the appeal.
Ratio Decidendi
The court found that the appellants had failed to set down the appeal for hearing more than a year after directions were given, with no explanation for their inaction. The only response from the appellants was a concession that the appeal was now academic due to resolution of the dispute. The court held that the requirements of Order 42 Rule 35(1) were satisfied, and there was no justification for the delay. Accordingly, the court exercised its discretion to dismiss the appeal for want of prosecution and awarded costs to the applicant for both the application and the appeal.
Court Disposition
Appeal dismissed for want of prosecution; costs awarded to the applicant.
Orders
- The appeal is dismissed for want of prosecution.
- The applicant is awarded costs for both the application and the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL APPEAL NO. 211 OF 2010
ERASTUS MBEU..............................................1ST APPLLANT/RESPONDENT
MARY WANJUGU..........................................2ND APPELLANT/RESPONDENT
BENSON GICHOHI NGURE...........................3RD APPELLANT/RESPONDENT
VERSUS
JOSEPH NDERITU NGANGA.................................RESPONDENT/APPLICANT
RULING
This ruling is in respect of a motion dated 4th November, 2014 filed under Order 42 Rule 35(1) of the Civil Procedure Rules principally seeking that the appeal herein be dismissed for want of prosecution. The motion is supported by the applicant’s affidavit in which he has sworn that directions under Order 42 Rule 13of the rules on the hearing of this appeal were given on 14th May, 2013 yet for almost one and a half years later, the appellant has not taken any step towards setting down the appeal for hearing.
Apart from the directions, the applicant took it upon himself to remind the appellants to file their written submissions in compliance with the directions given under Order 42 rule 13 of the Civil Procedure Rules; this was done vide a letter dated 16th November, 2012 but again this did not elicit any form of response from the appellants.
In what appears to me to be a concession on the part of the appellants, the 1st appellant swore a replying affidavit in which he has suggested that proceeding with this appeal serves only as an academic exercise because the dispute between the parties has been compromised or resolved; the rest of the appellants did not respond to the application.
Order 42 Rule 35(1) of the Civil Procedure Rules under which the application was made provides as follows:-
35. (1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
There is no doubt that the appellants have not set down the appeal for hearing more than a year after directions were given. No reason has been given for the appellants’ inaction and all I gather from at least one of the appellants is that they are not interested in the appeal. If that is the case I do not understand why they could not withdraw the appeal even after this application was filed and served upon their counsel. I am satisfied that the applicant’s application is merited in these circumstances and I hereby allow it; the applicant will have costs both for the application and the appeal. It is so ordered.
Dated, signed and delivered in open court this 26th February, 2016
Ngaah Jairus
NGAAH JAIRUS