[2008] KEHC 2435 (KLR)
The court found that the appellants had failed to take any meaningful steps to prosecute the appeal for over eight years, specifically by not filing a certified copy of the decree as required by the Civil Procedure Rules. The explanation offered by the appellants for not obtaining the decree was unsupported by...
Source-derived case information.
- Citation
- [2008] KEHC 2435 (KLR)
- Parties
- Appellant: John Njuguna Njoroge; Appellant: Peter Ngotho; Respondent: Mary Wangari Njau; Respondent: David Gathiku Kibe; Respondent: Njoroki Farm Ltd; Respondent: Samuel Kariuki Mburu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 17 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission Requirements, Failure to Prosecute, Inherent Powers of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njuguna Njoroge
Appellant
Peter Ngotho
Appellant
Mary Wangari Njau
Respondent
David Gathiku Kibe
Respondent
Njoroki Farm Ltd
Respondent
Samuel Kariuki Mburu
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 failure to file a certified copy of the decree.
- 2 Whether the court can exercise its inherent powers to dismiss the appeal in the absence of compliance with procedural requirements.
Ratio Decidendi
The court found that the appellants had failed to take any meaningful steps to prosecute the appeal for over eight years, specifically by not filing a certified copy of the decree as required by the Civil Procedure Rules. The explanation offered by the appellants for not obtaining the decree was unsupported by evidence of any effort. Since the appeal had not been admitted to hearing and the procedural requirements were not met, the court held that the continued existence of the appeal constituted an abuse of process. Exercising its inherent powers, the court dismissed the appeal to prevent further abuse and to uphold the integrity of court procedures.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 17 of 2000
JOHN NJUGUNA NJOROGE.......................APPELLANT
PETER NGOTHO...........................................APPELLANT
VERSUS
MARY WANGARI NJAU.....................1ST RESPONDENT
DAVID GATHIKU KIBE.....................2ND RESPONDENT
NJOROKI FARM LTD........................3RD RESPONDENT
SAMUEL KARIUKI MBURU............4TH RESPONDENT
R U L I N G
On the 17th January, 2000 John Njuguna and Peter Ngotho (hereinafter referred to as the appellants), filed a memorandum of appeal against the judgment of Mrs. Lichuma, SRM, delivered on 30th November, 1999. On the 16th June, 2000, a notice was sent to the appellant’s advocate informing him that the appeal had not been admitted to hearing as no certified copy of the decree appealed against had been filed. A record of appeal was subsequently filed on the 14th September, 2000. That record did not contain a copy of the decree. On the 29th March, 2004, another notice was sent to the appellant’s advocate requesting them to comply with the provisions of Order XLI Rule 1A of the Civil Procedure Rules. However, no action was taken by the appellant. On 19th April, 2005 notices were forwarded to the parties counsel under Order XLI Rule 31(2) of the Civil Procedure Rules. There is however no record on what transpired on 2nd June, 2005.
The advocates for the 3rd and 4th respondents have now moved this court under Order XLI Rule 3 of the Civil Procedure Rules seeking to have the appeal dismissed as against them. The appellants’ advocate contends that they were unable to secure a copy of the decree from the lower court.
I have considered this application. Order XLI Rule 3 of the Civil Procedure Rules does not provide for dismissal of appeals for want of prosecution. This is provided for under Order XLI Rule 31(1) and (2) of the Civil Procedure Rules. An application for the dismissal of an appeal can only be initiated by a respondent to the appeal under order XLI Rule 31(1) of the Civil Procedure Rules where the appeal has been admitted to hearing and directions have been given but the appellant is taking no action to have the appeal listed down for hearing. In this case, this appeal has not even been admitted to hearing because the appellants have failed to provide a copy of the decree. The explanation that the appellants are unable to secure a copy of the decree from then lower court cannot hold. Indeed no evidence of any efforts to secure the decree have been exhibited. It is obvious that the appellants have taken no action to prosecute this appeal which was filed more than 8 years ago The appellants have frustrated the prosecution of the appeal by failing to provided the decree. It is evident that the appellants have lost interest in this appeal and its continued existence is a clear abuse of the court process.
This is therefore an appropriate case in which the court should prevent such abuse of the court process by exercising its inherent powers. Accordingly, I dismiss the appeal.
Dated and delivered this 28th day of May, 2008
H. M. OKWENGU
JUDGE