[2011] KEHC 748 (KLR)

[2011] KEHC 748 (KLR)

The court found that the appellant had failed to set down the appeal for hearing for over three years after directions were given, and the explanation provided for the delay was unsubstantiated and unconvincing. The court held that the delay was inordinate and inexcusable, contrary to the overriding objective of the Civil Procedure Act and the constitutional imperative that justice shall not be delayed. The court exercised its discretion under Order 42 Rule 35(1) of the Civil Procedure Rules to dismiss the appeal for want of prosecution, concluding that the appellant had no genuine interest in prosecuting the appeal and was merely delaying the respondent's enjoyment of the judgment.

Citation
[2011] KEHC 748 (KLR)
Parties
Appellant: John Mark Kirimi; Respondent: Peter Gitonga Nkaabu
Court
High Court
Court Station
High Court at Meru
Jurisdiction
Kenya
Judgment Date
18 November 2011
Case Number
Civil Appeal 60 of 2003
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Outcome
Appeal dismissed for want of prosecution with costs to the applicant/respondent.
Judges
AN Makau
Legal Topics
Dismissal for Want of Prosecution, Delay in Prosecution, Appeals Process, Overriding Objective, Court Discretion
Source Language
English
Civil Procedure Dismissal for Want of Prosecution Delay in Prosecution Appeals Process Overriding Objective Court Discretion

Case Brief

Summary, issues, holding and outcome

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Parties

John Mark Kirimi

Appellant

Peter Gitonga Nkaabu

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
  2. 2 Whether the appellant demonstrated sufficient cause for the delay in setting down the appeal for hearing.

Ratio Decidendi

The court found that the appellant had failed to set down the appeal for hearing for over three years after directions were given, and the explanation provided for the delay was unsubstantiated and unconvincing. The court held that the delay was inordinate and inexcusable, contrary to the overriding objective of the Civil Procedure Act and the constitutional imperative that justice shall not be delayed. The court exercised its discretion under Order 42 Rule 35(1) of the Civil Procedure Rules to dismiss the appeal for want of prosecution, concluding that the appellant had no genuine interest in prosecuting the appeal and was merely delaying the respondent's enjoyment of the judgment.

Court Disposition

Appeal dismissed for want of prosecution with costs to the applicant/respondent.

Orders

  • The application is allowed.
  • The appeal is dismissed for want of prosecution.