[2008] KEHC 1565 (KLR)
The court found that the appellant had failed to take any steps to set the appeal down for hearing after directions were given in July 2001. Although the appellant engaged in interlocutory applications, these did not advance the substantive hearing of the appeal. The court held that the respondent was entitled to...
Source-derived case information.
- Citation
- [2008] KEHC 1565 (KLR)
- Parties
- Appellant: Hortiquip Limited; Respondent: Edward Ukiru Chasia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 67 of 1999
- 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, Directions and Hearing Dates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hortiquip Limited
Appellant
Edward Ukiru Chasia
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 the appellant's failure to set it down for hearing.
- 2 Whether the respondent's application is fatally defective for citing the wrong procedural rule.
Ratio Decidendi
The court found that the appellant had failed to take any steps to set the appeal down for hearing after directions were given in July 2001. Although the appellant engaged in interlocutory applications, these did not advance the substantive hearing of the appeal. The court held that the respondent was entitled to seek dismissal for want of prosecution under Order 41 rule 31 (1) of the Civil Procedure Rules, notwithstanding that the application cited Order 16 rule 5 (d), because Order 50 rule 12 allows for substance over form in procedural matters. The court concluded that the appellant had lost interest in the appeal and that it was appropriate to dismiss the appeal for want of...
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- The appellant shall pay to the respondent the costs of the appeal and the application.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Appeal 67 of 1999
HORTIQUIP LIMITED :::::::::::::::::::::::::: APPELLANT
V E R S U S
EDWARD UKIRU CHASIA ::::::::::::::::: RESPONDENT
RULING
The respondent has moved the court pursuant to the provisions of Order 16 rule 5 (d) of the Civil Procedure Rules, as read together with section 3A of the Civil Procedure Act.
It is his prayer that the appeal herein be dismissed for want of prosecution.
The record shows that the appeal was filed on 27th July 1999. Thereafter, the Hon. Waweru J. gave directions on 10th July 2001. As at that date, the court was satisfied that the appeal was ready for hearing. Therefore, the court directed that the hearing dates could be fixed at the registry.
As the respondent points out, the appellant has never taken any steps to fix the appeal for hearing.
On record, there is an application by the respondent, dated 2nd July 2001, seeking to have the appeal expunged from record.
On 14th November 2002, the court dismissed that application.
Meanwhile, on 31st October 2002, the Appellant had filed an application for stay of execution. After giving consideration to that application, the court dismissed it on 15th January 2005.
Clearly, some steps were taken in the appeal. However, both steps were intended to advance interlocutory applications within the appeal, but never the appeal itself.
In the result, I am satisfied that the appellant has taken no steps to have the appeal set down for hearing.
By virtue of the provisions of Order 41 rule 31 (1) of the Civil Procedure Rules;
“Unless within three months after the giving of directions under rule 8B 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.”
I am aware that the respondent herein did not cite Order 41 rule 31 of the Civil Procedure Rules, as the basis for his application. Instead he had relied on Order 16 rule 5 (d), which is only applicable to the dismissal of suits for want of prosecution.
But, by virtue of Order 50 rule 12 of the Civil Procedure Rules, whereas every order, rule or other statutory provision under or by virtue of which any application is made, must ordinarily be stated,
“but no objection shall be made and no application shall be refused merely by reason of a failure to comply with this rule.”
Having taken into account the fact that the appeal herein was filed in 1999, and that the directions were given in July 2001, I hold the considered view that the appellant has lost interest in the appeal, as he has taken no steps to have the appeal set down for hearing. This is, therefore, a fit and proper appeal for dismissal for want of prosecution.
Accordingly, the appeal is hereby dismissed for want of prosecution. The appellant shall pay to the respondent the costs of the appeal, together with the costs of the application herein.
Dated, Signed and Delivered at Kakamega, this 16th day of September, 2008.
FRED A. OCHIENG
J U D G E