[2011] KEHC 352 (KLR)
The court held that the application to strike out the appeal for want of prosecution was procedurally improper. Under Order 42 rule 35(1) of the Civil Procedure Rules, directions must first be taken before an application for dismissal can be entertained. Alternatively, under Order 42 rule 35(2), only the Registrar...
Source-derived case information.
- Citation
- [2011] KEHC 352 (KLR)
- Parties
- Appellant: Estate of the Late John Kangethe Kaburu (Mrs Kangethe); Appellant: New Roysambu Housing Co. Ltd; Respondent: Stephen Mburu Njuguna
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 300 of 2009
- Procedural Posture
- Civil Appeal / Application to Strike Out Appeal for Want of Prosecution
- Outcome
- Application dismissed with costs to the respondent in the application and appellant in the main appeal.
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Directions Under Order 42, Land Ownership Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Estate of the Late John Kangethe Kaburu (Mrs Kangethe)
Appellant
New Roysambu Housing Co. Ltd
Appellant
Stephen Mburu Njuguna
Respondent
Procedural Posture
Civil Appeal / Application to Strike Out Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution under Order 42 rule 35 of the Civil Procedure Rules.
- 2 Whether the proper procedure for dismissal for want of prosecution was followed by the respondent.
Ratio Decidendi
The court held that the application to strike out the appeal for want of prosecution was procedurally improper. Under Order 42 rule 35(1) of the Civil Procedure Rules, directions must first be taken before an application for dismissal can be entertained. Alternatively, under Order 42 rule 35(2), only the Registrar may move the court for dismissal after 12 months of inactivity post-service of the memorandum of appeal. The respondent did not follow the prescribed procedure, as no directions had been taken and the application was not made by the Registrar. The court found that the respondent's application was premature and dismissed it with costs to the appellants.
Court Disposition
Application dismissed with costs to the respondent in the application and appellant in the main appeal.
Orders
- The application dated 22nd March 2011 is dismissed.
- Costs awarded to the respondent in the application and appellant in the main appeal.
Full Case Text
Judgment text and source record
34 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
CIVIL APPEAL NO. 300 OF 2009
ESTATE OF THE LATE JOHN KANGETHE
KABURU (MRS KANGETHE) ..………………….............................…………... 1ST APPELLANT/
NEW ROYSAMBU HOUSINGORIGINAL 1ST DEFENDANT
CO. LTD ………………………………………………………… 2ND APPELLANT/ORIGINAL 2ND DEFENDANT
VERSUS
STEPHEN MBURU NJUGUNA ………………………….…… RESPONDENT/ORIGINAL PLAINTIFF
(Being an appeal arising from the ruling/order of Honourable Senior Resident Magistrate,
K. L. Kandet Esq delivered in Milimani CMCC No. 3834 of 2005 on the 21st July 2008)
J U D G M E N T
I.BACKGROUND
1. Land is a sensitive matter. In the subordinate court at Nairobi a land matter was filed by the original plaintiff/respondent concerning
Plot No. 293/Zimmerman Estate. Declaratory orders of ownership of the said land were sought from the original defendant/appellant.
2. Interlocutory judgment was entered on 1st August 2005. Formal proof was conducted and heard on the 26th June 2006.
The Hon. Trial Magistrate delivered judgment on 7th July 2006. Judgment was duly entered in favour of the plaintiff.
3. The advocate for the respondent/appellant filed application dated 21st July 2008 seeking orders to set aside the interlocutory judgment. The advocate failed to be diligent in prosecuting the application. It was dismissed. The advocate for the original defendant prayed that leave be granted to appeal out of time (19th December 2008. ) This was allowed on 15th May 2009.
4. An appeal was filed on 17th June 2009.
IIAPPLICATION NOTICE OF MOTION 22ND MARCH 2011
5. The respondent filed an application dated 22nd March 2011 seeking for orders of this court to strike out the appeal for lack of prosecution. That the appellant has just delayed tactics in this appeal to cause its delay in being prosecuted.
6. In reply, the appellant/respondent stated that they were awaiting the proceedings of the court to be ready.
IIIFINDINGS
7. In order for an application for dismissal for want of prosecution to be applied for under Order 42 rule 35(1) directions under Order 42 r 13 Civil Procedure Rules must first be taken out. It is thereafter that the appeal may be set down by a litigant after three months of no action being taken to prosecute the matter.
8. The other rules being order 42 r 35 (2) that requires, upon service of the memorandum of appeal, a period of 12 months had to lapse with no activity on the file being taken, then may an application be filed.
9. In the case law of Kenya Commercial Bank – Vs – Abdinoor Aden MohammedCA 630/07 Nairobi where an application was filed before directions were taken refers.
10. In this application, it appears that perhaps 12 months may have lapsed since service memorandum of the appeal. The only party who may move the court for dismissal is the Registrar of the High Court. This cannot be done individually by a litigant. A letter to the registrar would have been required to have been written.
11. The application is hereby dismissed with costs to the respondent in this application and appellant in the main appeal.
DATED THIS 3RD DAY OF OCTOBER 2011 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) R.N. Mokaya instructed by M/s Migos Ogamba & Co Advocates for the appellant
ii) Muriuki G N instructed by M/s Gitonga Muriuki & Co Advocates for the respondent