[2020] KEHC 3404 (KLR)
The court found that the requirements for dismissal under Order 42 rule 35(1) were not met because no record of appeal had been filed and no directions had been issued. Therefore, the application for dismissal for want of prosecution could not succeed at this stage. However, the court acknowledged the inordinate...
Source-derived case information.
- Citation
- [2020] KEHC 3404 (KLR)
- Parties
- Appellant: George Gachoka Kanyoni “B”; Appellant: David Kinyanjui Kanyoni; Respondent: George Gachoka Kanyoni “A”
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Probate & Administration 23 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application for dismissal of appeal for want of prosecution declined; notice of dismissal to be issued by Deputy Registrar.
- Judges
- A Ali-Aroni
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Service of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Gachoka Kanyoni “B”
Appellant
David Kinyanjui Kanyoni
Appellant
George Gachoka Kanyoni “A”
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 due to inaction by the appellants for six years.
- 2 Whether proper service of the application for dismissal was effected on the appellants.
- 3 Whether the procedural requirements under Order 42 rule 35(1) and (2) of the Civil Procedure Rules were satisfied.
Ratio Decidendi
The court found that the requirements for dismissal under Order 42 rule 35(1) were not met because no record of appeal had been filed and no directions had been issued. Therefore, the application for dismissal for want of prosecution could not succeed at this stage. However, the court acknowledged the inordinate delay by the appellants, who had obtained a stay and then failed to take further steps for six years, thereby prejudicing the respondent. As a result, the court exercised its discretion under Order 42 rule 35(2) to direct the Deputy Registrar to issue a notice of dismissal for want of prosecution and to set the matter down for hearing on a date to be communicated to the parties.
Court Disposition
Application for dismissal of appeal for want of prosecution declined; notice of dismissal to be issued by Deputy Registrar.
Orders
- The application to dismiss the appeal for want of prosecution is declined.
- The Deputy Registrar is directed to issue notice of dismissal of the appeal for want of prosecution and set the matter down for hearing at a date to be communicated to the parties.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
P&A APPEAL NO. 23 OF 2012
IN THE MATTER OF THE ESTATE OF SAMUEL KANYONI GACHOKA ALIAS KANYONI GACHOKA (DECEASED)
GEORGE GACHOKA KANYONI “B”
DAVID KINYANJUI KANYONI ...................................APPELLANTS
VERUS
GEORGE GACHOKA KANYONI “A”....................... RESPONDENT
RULING
1. The application subject of this ruling and dated 31st December, 2018 seeks to have the appeal dismissed for want of prosecution as the same was filed in 2012 and so far no memorandum of appeal has been served upon the respondent nor any steps taken in 6 years yet the trial court gave a stay.
2. I have considered the application and inasmuch as the same may be merited; firstly, there was no explanation why the application was served upon the Appellants yet they have a counsel on record, secondly it is not said how the process server identified them. Thirdly Order 42 rule 35 (1)requires that within 3 months after giving directions the appeal ought to be set down for hearing and if the appellant does not do so the respondent is at liberty to set it for hearing or apply for dismissal.
3. The Order 42 rule 35(1) presupposes that the appellant has filed the record and the court has given directions as to hearing. This is not the situation here as no record has been filed nor directions issued. The circumstances therefore militate against dismissal. However, Order 45 rule 35(2) on the other hand gives the court the power to dismiss an appeal within a year of service of the memorandum of appeal. It has been 6 years since the memorandum was filed and the court can proceed to issue notice.
4. I decline to grant the prayers sought. However since the appellants after obtaining a stay went to slumber for 6 years denying the respondent fruits of a judgement in his favour which is totally unfair, I direct the Deputy Registrar to issue notice of dismissal of the appeal for want of prosecution and set the matter down at a date to be communicated to the parties.
Dated and Delivered in Nairobi on this30TH day of JULY, 2020.
ALI-ARONI
JUDGE