[2014] KEHC 7771 (KLR)
The court held that the respondent's application for dismissal of the appeal for want of prosecution could not succeed because the respondent failed to disclose or prove when the memorandum of appeal was served. Since the one-year period under Order 42, rule 35(2) of the Civil Procedure Rules is reckoned from the...
Source-derived case information.
- Citation
- [2014] KEHC 7771 (KLR)
- Parties
- Appellant: Githunguri Dairy Farmers Co-operative Society; Respondent: Peter Ng’ang’a Waweru & 22 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 438 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the appellant
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Memorandum of Appeal Service
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githunguri Dairy Farmers Co-operative Society
Appellant
Peter Ng’ang’a Waweru & 22 Others
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 under Order 42, rule 35(2) of the Civil Procedure Rules.
- 2 Whether the respondent established when the memorandum of appeal was served to trigger the one-year period for dismissal.
Ratio Decidendi
The court held that the respondent's application for dismissal of the appeal for want of prosecution could not succeed because the respondent failed to disclose or prove when the memorandum of appeal was served. Since the one-year period under Order 42, rule 35(2) of the Civil Procedure Rules is reckoned from the date of service of the memorandum of appeal, and this date was neither pleaded nor established, the application was fatally defective. The court further found that the respondent's attempt to invoke the court's inherent jurisdiction at the hearing, without having pleaded it in the application, amounted to an ambush and was unacceptable. Accordingly, the application was dismissed...
Court Disposition
application dismissed with costs to the appellant
Orders
- The chamber summons dated 25th September 2013 is dismissed with costs to the appellant.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO 438 OF 2011
GITHUNGURI DAIRY FARMERS
CO-OPERATIVE SOCIETY...................................APPELLANT
VERSUS
PETER NG’ANG’A WAWERU & 22 OTHERS.....RESPONDENTS
R U L I N G
1. The Respondent in this appeal has applied by chamber summons dated 25th September 2013for dismissal of the Appellant’s appeal for want of prosecution.
2. The application is brought under Order 42, rule 35(2) of the Civil Procedure Rules (the Rules). Under that subrule, if within one year after service of 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. I see nothing wrong in a respondent applying under the subrule for dismissal of an appeal for want of prosecution.
3. The operating event under rule 35(2) aforesaid is service of memorandum of appeal. The delay of one year or more must be reckoned from the date of service of the memorandum of appeal.
4. The Respondent’s application and supporting affidavit have not disclosed when the memorandum of appeal was served upon the Respondent. The Respondent’s learned counsel was unable to tell the court at the hearing of the application when the memorandum of appeal was served upon the Respondent.
5. The application did not on the face of it invoke the inherent power of the court. An attempt by learned counsel for the Respondent to do so at the hearing was an unacceptable ambush of the Appellant’s learned counsel.
6. In the circumstances I must refuse the chamber summons dated 25th September 2013. It is dismissed with costs to the Appellants. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF APRIL 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 4TH DAY OF APRIL 2014