[2015] KEHC 376 (KLR)
The court found that the appellants failed to take any steps to prosecute the appeal after filing and serving the memorandum of appeal, specifically failing to list the appeal before a Judge for directions as required by Order 42 rule 13(1). The responsibility to do so lies with the appellant, not the respondent or...
Source-derived case information.
- Citation
- [2015] KEHC 376 (KLR)
- Parties
- Appellant: Balkau Engineering Mechanical & Structural Engineers Ltd.; Appellant: Jatinder Singh Bhamra; Respondent: Enock Odhiambo Oriko
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 107 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Failure to Prosecute, Court Directions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Balkau Engineering Mechanical & Structural Engineers Ltd.
Appellant
Jatinder Singh Bhamra
Appellant
Enock Odhiambo Oriko
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 inaction by the appellant.
- 2 Whether the respondent's application for dismissal is premature under the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellants failed to take any steps to prosecute the appeal after filing and serving the memorandum of appeal, specifically failing to list the appeal before a Judge for directions as required by Order 42 rule 13(1). The responsibility to do so lies with the appellant, not the respondent or the registrar. No explanation was provided by the appellants for this failure. As more than one year had lapsed since service of the memorandum of appeal without any action, the court held that the appeal was liable for dismissal under Order 42 rule 35(2). The application for dismissal for want of prosecution was therefore allowed, and costs were awarded to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs of the appeal and the application are awarded to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL APPEAL NO. 107 OF 2014
BALKAU ENGINEERING MECHANICAL
& STRUCTURAL ENGINEERS LTD. ….................................... 1ST APPELLANT
JATINDER SINGH BHAMRA ….............................................. 2ND APPELLANT
VERSUS
ENOCK ODHIAMBO ORIKO ….............................................. RESPONDENT
RULING
By the Notice of Motion dated 10th November 2015 the Respondent has sought dismissal of this appeal for want of prosecution. He also prays for the costs of the appeal and the application.
The gist of the application is that whereas the memorandum of appeal herein was filed on 15th October 2014 and served upon the respondent's counsel on 15th October 2014 the appellant has taken no further steps and has not demonstrated any intention and/or willingness to prosecute the appeal.
The application was opposed vide grounds of opposition dated 16th January 2016 the gist of which is that the application is premature.
The Court heard the Advocates for the parties on 18th January 2016 and has now had ample opportunity to consider the issues raised.
Order 42 rule 13(1) requires the appellant to within not less than 21 days of service of the memorandum of appeal to cause the appeal to be listed before a Judge in chambers for directions. This has never been done. Order 42 Rule 35(1) and 2 provide for dismissal for want of prosecution as follows:-
''35. (1) Unless within three months after 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.
(2) If within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a Judge in chambers for dismissal.''
The memorandum of appeal herein was filed on 15th October 2014 and served on the respondent on the same date. No steps have ever been taken to place it before the Judge for directions as required under rule 13. The task to do so is placed on the appellant and not on the respondent or the registrar and the appellant can therefore not be heard to say that this application flouts that rule. The appellant has given no explanation for failing to do so. In any event this Court could even dismiss the appeal under sub-rule 2 as one year has lapsed since the service of the memorandum of appeal yet no steps have been taken to set the appeal down for hearing. The application is accordingly allowed with costs of the appeal and of this application being awarded to the Respondent.
It is so ordered.
E. N. MAINA
JUDGE
28/1/2016
Signed, dated and pronounced in open Court this 28th day of January 2016.
In presence of:-
Miss Mwalo for Respondent
Miss Namusubo for Appellant
CC: Felix