[2009] KEHC 2734 (KLR)
The court found that there was no proper basis for dismissing the appeal at this stage. The procedure adopted by the respondent, namely moving the court by way of a mention, was inappropriate for seeking dismissal. The court noted that the previous order requiring prosecution within ninety days did not specify...
Source-derived case information.
- Citation
- [2009] KEHC 2734 (KLR)
- Parties
- Appellant: Joseph Boro Ngera t/a Ngera Fancy Farm; Respondent: Samwel Ndegwa Kirungumi
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Civil Application 143 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application to dismiss appeal declined.
- Judges
- SP Ouko
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Court Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Boro Ngera t/a Ngera Fancy Farm
Appellant
Samwel Ndegwa Kirungumi
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 prosecute within ninety days as previously ordered.
- 2 Whether an appeal can be dismissed by way of a mention rather than a formal hearing.
- 3 Whether the appellant is responsible for the admission of the appeal.
Ratio Decidendi
The court found that there was no proper basis for dismissing the appeal at this stage. The procedure adopted by the respondent, namely moving the court by way of a mention, was inappropriate for seeking dismissal. The court noted that the previous order requiring prosecution within ninety days did not specify consequences for non-compliance, and the court retains discretion to enlarge time even after the period has expired. Furthermore, the appeal had not been admitted, and the responsibility for admission lies with the court administration, not the appellant. Therefore, the application to dismiss the appeal was declined.
Court Disposition
Application to dismiss appeal declined.
Orders
- Deputy Registrar to place the appeal before any judge for orders under Sections 79B and 79G of the Civil Procedure Act.
- No orders as to costs.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
MISCELLANEOUS CIVIL APPLICATION 143 OF 2007
JOSEPH BORO NGERA T/A NGERA FANCY FARM...……APPELLANT
VERSUS
SAMWEL NDEGWAKIRUNGUMI….………………………..RESPONDENT
(From original judgment and decree of Nakuru C.M.C.C.NO.143/2007
by Hon. Nicholas Opele Ateya, Senior Principal Magistrate, Nakuru)
RULING
This is an appeal from the decision of the court below delivered on 19th December, 2003 in Nakuru CMCC No.361 of 1996. The appeal was filed on 13th September, 2007.
On 10th February, 2009, this court (Koome, J.) ordered the appellant to prosecute the appeal within ninety (90) days. Learned Counsel for the respondent requested for a mention date before the court on 6th July, 2009. On that day he asked the court to dismiss the appeal on the ground that the appellant had failed to prosecute the appeal within ninety (90) days as ordered. Learned counsel for the appellant argued that he had not been notified of the purpose of the mention and that the appeal cannot be dismissed by way of a mention. Finally he submitted that the appeal has not even been admitted.
The court can dismiss an appeal under Order 41 Rule 9 Civil Procedure Rules at anytime after the memorandum of appeal has been
H.C.C.A.NO.143/07
served, on the ground that security for costs is not given within the time ordered.
Secondly, the court can dismiss an appeal under Order 41 Rule 14 where the appellant does not appear when the appeal is called out for hearing.
The third ground for dismissal of an appeal is Rule 25 where the court consisting of two judges who are divided in their opinion.
Finally an appeal will be dismissed for want of prosecution under the circumstances enumerated in Order 41 Rule 31 of the Civil Procedure Rules.
I believe the court also has an inherent jurisdiction to order the dismissal of an appeal if it thinks it (the appeal) amounts to an abuse of its process.
In the matter before me, apart from the procedure adopted, namely, court moved by way of a mention, there is no basis for dismissing the appeal. After all, the court (Koome, J.) in directing that the appeal be prosecuted within ninety (90) days did not specify the consequences for failure. As a matter of fact, even where the court has limited time for doing an act, the court still retains the power to enlarge such time upon such terms as the justice of the case may require and such enlargement may be ordered even after the period limited has expired. The door has
H.C.C.A.NO.143/07
not been shut on the appellant. Besides, the appeal has not been admitted. It has never been the responsibility of the appellant to ensure
that the appeal is admitted or rejected. That is purely administrative. The appellant, apart from reminding the Deputy Registrar, has no role beyond that.
It is now ordered that the Deputy Registrar places this appeal before any judge in this court for orders under Sections 79B and 79G of the Civil Procedure Act.
No orders as to costs.
DATED and DELIVERED at Nakuru this 21st day of July, 2009.
W. OUKO
JUDGE