[2010] KEHC 3059 (KLR)
The court found that the application to dismiss the appeal for want of prosecution was premature and lacked merit because the original record of the lower court had not been forwarded to the High Court, and no directions had been given in the appeal. The appellant had made reasonable efforts to obtain the lower...
Source-derived case information.
- Citation
- [2010] KEHC 3059 (KLR)
- Parties
- Appellant: Harjit Singh Brar; Respondent: Legal Foundation Resources Trust; Respondent: Jedidah Wakonyo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 770 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Record of Appeal, Directions in Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Harjit Singh Brar
Appellant
Legal Foundation Resources Trust
Respondent
Jedidah Wakonyo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI Rule 31 of the Civil Procedure Rules.
- 2 Whether the application to dismiss the appeal is premature in the absence of directions and the lower court record.
Ratio Decidendi
The court found that the application to dismiss the appeal for want of prosecution was premature and lacked merit because the original record of the lower court had not been forwarded to the High Court, and no directions had been given in the appeal. The appellant had made reasonable efforts to obtain the lower court proceedings, as evidenced by correspondence, and the delay was attributable to the lower court's failure to provide the necessary documents. Therefore, the requirements for dismissal under Order XLI Rule 31 had not been met, and the application was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to dismiss the appeal for want of prosecution is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 770 of 2006
HARJIT SINGH BRAR………………………………...APPELLANT
VERSUS
LEGAL FOUNDATION RESOURCES TRUST…..….1ST RESPONDENT
JEDIDAH WAKONYO……………...………....2ND RESPONDENTS
R U L I N G
1. The legal foundation Resources Trust and Jedidah Wakonyo (hereinafter referred to as the applicants), are the respondents to this appeal. They have moved this court under Order XLI Rule 31 of the Civil Procedure Rules, and Section 3A of the Civil Procedure Act, seeking to have the appeal filed against them dismissed for want of prosecution. The applicants contend that no steps have been taken to have the appeal set down for hearing since the appeal was filed on9th November, 2006.
2. Harjit Singh Brar who is the appellant objects to the application contending that it is premature, bad in law and fatally defective. Counsel for the appellant has pointed out that neither Order XLI Rule 31(1) nor Rule 31(2) of the Civil Procedure Rules, can be used to dismiss the appeal. Firstly, because no directions have been given in the appeal and secondly, because the application has not been initiated by the Registrar of the Court. Counsel further explains that the respondent cannot be held responsible for the delay in filing the record of appeal because efforts to obtain copies of proceedings from the lower court have been fruitless.
3. Having given due consideration to this application, I cannot but concur with the advocate for the appellant. It is evident that the original record of the lower court has not been forwarded to this court despite a request having been made to the lower court. Therefore, the appeal cannot even be considered for admission under Section 79B of the Civil Procedure Act. The appellant has explained that he is experiencing difficulties in getting copies of proceedings hence his inability to file a record of appeal. That explanation is plausible given the correspondences exhibited and the failure by the lower court to forward the original lower court file to this court.
4. I find that the application before me is premature and also lacks merit. It is accordingly dismissed with costs.
Dated and delivered this 18th day of March, 2010
H. M. OKWENGU
JUDGE
In the presence of: -
Mutiso H/B for Menezes for the appellant/respondent
Kabue for the respondents/applicants
Erick - Court clerk