[2006] KEHC 1000 (KLR)
The court found that the application to dismiss the appeal for want of prosecution under Order XLI rule 31 was premature and incompetent because it was brought by an Interested Party rather than the Respondent, and directions had not been taken as required by the rule. However, the court recognized that the...
Source-derived case information.
- Citation
- [2006] KEHC 1000 (KLR)
- Parties
- Appellant: George E. Wekesa & Others; Respondent: Aga Khan Health Services Mombasa; Interested Party: Farid M. S. Almaary
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 109 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution and to Set Aside Stay Order
- Outcome
- Application to dismiss appeal for want of prosecution struck out as premature; order of stay set aside.
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Execution, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George E. Wekesa & Others
Appellant
Aga Khan Health Services Mombasa
Respondent
Farid M. S. Almaary
Interested Party
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution and to Set Aside Stay Order
Legal Issues
- 1 Whether an interested party can invoke Order XLI rule 31 of the Civil Procedure Rules to seek dismissal of an appeal for want of prosecution.
- 2 Whether the order of stay of execution issued on 27-10-99 should be set aside due to delay by the appellant.
Ratio Decidendi
The court found that the application to dismiss the appeal for want of prosecution under Order XLI rule 31 was premature and incompetent because it was brought by an Interested Party rather than the Respondent, and directions had not been taken as required by the rule. However, the court recognized that the Interested Party, being affected by the stay order, had standing to seek its discharge. The court was satisfied that the Appellant had delayed the prosecution of the appeal for an inordinately long period, causing prejudice to the Interested Party. Consequently, the court exercised its discretion under Order XLI rule 4(1) to set aside the stay order issued on 27-10-99.
Court Disposition
Application to dismiss appeal for want of prosecution struck out as premature; order of stay set aside.
Orders
- The application under Order XLI rule 31 is struck out as premature.
- The order of stay of execution issued on 27-10-99 is set aside.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA Civil Appeal 109 of 1999
GEORGE E. WEKESA & OTHERS…………...................................….………..APPELLANT
VERSUS
AGA KHAN HEALTH SERVICES MOMBASA……..................................…RESPONDENT
FARID M. S. ALMAARY……………....................................……….….INTERESTED PARTY
RULING
Pursuant to the provisions of Order XLI rule 31 of the Civil Procedure rules, Farid M.S. Almaary the Interested Party herein applied for the appeal to be dismissed for want of prosecution or in the alternative for this court to discharge the order of stay of execution given on 27-10-99. The application is supported by the affidavit sworn by the Interested Party. The application was served but did not attract any response from the Appellant.
It is the submission of Mr. Ndegwa that the Appellant has not taken any steps to make the appeal ready for hearing. It is the argument of the Interested Party that the Appellant has lost interest in pursuing the appeal. The Interested Party has complained that he is extremely prejudiced and frustrated by the order barring him from dealing with the property.
I have considered the arguments put forward by the Interested Party. I have also perused the material placed before this court. The provisions of Order XLI rule 31(1) of the Civil Procedure Rules can only be invoked by the Respondent and not an Interested Party. When a Respondent invokes the above provisions, it must be shown that directions have been taken. It is clear that directions have not been taken in this case. In view of the above discrepancies, I find that the application under Order XLI rule 31 is premature. The same is ordered struck out. The Interested Party has also prayed for the order of stay issued on 27-10-99 to be set aside. I am satisfied that the Interested Party has been affected by that order hence he has a right to come before the appellate court to set aside the stay order. I am convinced that the Appellant has taken an inordinately long period to prosecute the appeal thus causing an untold suffering to the Interested Party. I hereby set aside the order of stay of 27-10-99 pursuant to order XLI rule 4(1) of the Civil Procedure Rules.
Dated and delivered this 19th day of October, 2006
J. K. SERGON
JUDGE
In open court in the presence of Mr. Ndegwa for the interested party.
No appearance for the Appellant.