[2018] KEHC 5927 (KLR)
The court found that the appellant had taken no action to prosecute the appeal since filing the memorandum of appeal in 2005. No record of appeal was filed, and the appellant failed to demonstrate any interest or steps taken to advance the matter, despite the lower court file and decree being available since 2009....
Source-derived case information.
- Citation
- [2018] KEHC 5927 (KLR)
- Parties
- Appellant: James Musembi Vaita; Respondent: Automotive & Industrial Battery Manufacturers Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Musembi Vaita
Appellant
Automotive & Industrial Battery Manufacturers Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules.
- 2 Whether the appellant demonstrated sufficient interest or steps taken to prosecute the appeal.
Ratio Decidendi
The court found that the appellant had taken no action to prosecute the appeal since filing the memorandum of appeal in 2005. No record of appeal was filed, and the appellant failed to demonstrate any interest or steps taken to advance the matter, despite the lower court file and decree being available since 2009. The court was not satisfied that there was any good cause shown to prevent dismissal. Accordingly, the appeal was dismissed for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is hereby dismissed for want of prosecution.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 84 OF 2005
JAMES MUSEMBI VAITA................................................. APPELLANT
VERSUS
AUTOMOTIVE & INDUSTRIAL BATTERY
MANUFACTURERS LIMITED.....................................RESPONDENT
RULING
The Appeal herein was filed on the 24th February 2005 being an Appeal against the judgment and Decree of the Chief Magistrate Court at Nairobi, in CMCC No. 4432 of 2003.
After filing the appeal the Appellant went to sleep and on 11th may 2018, the court listed the same for notice to show cause why it should not be dismissed for want of prosecution, under the provisions of Order 42 Rule 35(2) of the Civil Procedure Rules.
On the said date, Mr. Nyabene holding brief for Mr. Wambugu informed the court that there are two applications pending hearing both of which were filed by the Respondents. He did not tell the court whether the Appellant is still interested in pursuing the Appeal and what steps he has taken since the Appeal was filed. This is notwithstanding the fact that the matter had been listed for Notice to show case.
The court has perused the record and it is noted that since the Appeal was filed, no action has been taken by the Appellant to prosecute the same. Infact, save for the Memorandum of appeal filed on 24th February, 2005 nothing else has been done in this matter. The two applications that are said to be pending are not on record and it is doubtful if indeed there are any such applications. Even assuming, there are pending applications, the Appellant is at liberty to fix them for hearing and/or apply to have them dismissed to pave way for the hearing of the Appeal.
It is further noted that the Lower Court file was forwarded to this court and upon perusal of the same, it shows that proceedings were typed and a copy of the decree issued on 23rd February, 2009 yet the Appellant herein has not even filed a record of Appeal. This is a clear indication that the Appellant has lost interest in the Appeal.
In the end, I find that no good cause was shown why the Appeal should not be dismissed and I therefore order that the same be and is hereby dismissed for want of prosecution.
Dated, Signed and Delivered at Nairobi this 14th Day of June 2018.
…………………………….
L. NJUGUNA
JUDGE
In the Presence of
…………………………. For the Applicant
…………………………. For the Respondent