[2005] KEHC 2475 (KLR)
The court found that the appellant failed to take any steps to prosecute the appeal after filing and serving the Memorandum of Appeal. No record of appeal was filed, and no explanation was provided for the delay. More than a year had passed since service of the Memorandum of Appeal, and the requirements of Order 41...
Source-derived case information.
- Citation
- [2005] KEHC 2475 (KLR)
- Parties
- Appellant: Gusii Farmers Rural Sacco Ltd; Respondent: Henry Mageto Kerina; Respondent: Petro Mosoti; Respondent: Augostino Nyakundi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 91 of 2003
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- K Bauni
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Failure to Prosecute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gusii Farmers Rural Sacco Ltd
Appellant
Henry Mageto Kerina
Respondent
Petro Mosoti
Respondent
Augostino Nyakundi
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 41 rule 31 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant failed to take any steps to prosecute the appeal after filing and serving the Memorandum of Appeal. No record of appeal was filed, and no explanation was provided for the delay. More than a year had passed since service of the Memorandum of Appeal, and the requirements of Order 41 rule 31(2) Civil Procedure Rules were satisfied. The application for dismissal was unopposed, and the court concluded that this was a proper case for dismissal of the appeal for want of prosecution.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed with costs.
- Appellant granted leave to appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII Civil Appeal 91 of 2003
GUSII FARMERS RURAL SACCO LTD …………………………… APPELLANT
VERSUS
HENRY MAGETO KERINA)
PETRO MOSOTI )………………………………… RESPONDENT
AUGOSTINO NYAKUNDI)
RULING
This is an application by the Respondent in the appeal to have the appeal dismissed for want of prosecution. It is brought under Order 41 rule 31 CPR.
The appeal was filed on 23rd May 2003 by the firm of M/S G. J. M. Masese Advocate. The Memorandum of Appeal was served upon counsel for the respondent on the same day 23rd May 2003. Since then the appellant took no action.
The Applicant/Respondent filed this application on 4th February 2005, almost two years after the appeal was preferred. It was served on the firm of M/S. G. M. J. Masese Advocate. He did not file a replying affidavit or grounds of opposition. On 18th April 2005 the firm of M/S. Omariba & Co. Advocates were allowed to come on record for the appellant instead of the firm of M/S G. M J. Masese Advocate. However the said firm of Omariba & Co Advocate never filed a Notice of appointment neither did they file a replying affidavit or grounds of opposition. On the hearing day
Mr. Omariba appeared for adjournment which was rejected. The application therefore proceeded ex parte. It was unopposed. It is clear that after filing the appeal the appellant went to sleep. He never filed record of appeal or took any other steps. Order 41 rule 31 (2) CPR provides that if appeal is not set down for hearing within one year after Memorandum of Appeal has been served then the Registrar can set it for dismissal. It is obvious that more than a year have passed since Memo of appeal was served on 23rd May 2003. No steps have been taken and there is no explanation. This therefore is a proper case for dismissal.
In the circumstances the appeal is dismissed with costs.
Dated at Kisii 28th day April of 2005.
KABURU BAUNI
JUDGE
cc. Mobisa Mr. Nyachae for Mr. Omariba for Appellant.
KABURU BAUNI
JUDGE
Court:-Appellant granted leave to appeal
KABURU BAUNI
JUDGE