[2012] KEHC 921 (KLR)
The court found that although the respondent's application for dismissal was not properly grounded under Order 42 Rule 35(1) because no directions had been taken, the court itself has the discretion under Order 42 Rule 35(2) to dismiss an appeal for want of prosecution if it has not been set down for hearing within...
Source-derived case information.
- Citation
- [2012] KEHC 921 (KLR)
- Parties
- Appellant: Joseph John Kiburi; Respondent: Atanas Omuroka; Respondent: Timothy Okumu; Respondent: Collins Otieno
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 223 of 2004
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution with costs to the respondent.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph John Kiburi
Appellant
Atanas Omuroka
Respondent
Timothy Okumu
Respondent
Collins Otieno
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules.
- 2 Whether the court's jurisdiction was properly invoked by the respondent's application.
- 3 Whether the court can dismiss the appeal on its own motion for lack of prosecution.
Ratio Decidendi
The court found that although the respondent's application for dismissal was not properly grounded under Order 42 Rule 35(1) because no directions had been taken, the court itself has the discretion under Order 42 Rule 35(2) to dismiss an appeal for want of prosecution if it has not been set down for hearing within one year of service of the memorandum of appeal. The appellant had not taken any steps to prosecute the appeal for over eight years, and neither appeared nor filed any reply to the application. The court concluded that the appellant had lost interest in the appeal and, exercising its discretion, dismissed the appeal with costs to the respondent.
Court Disposition
Appeal dismissed for want of prosecution with costs to the respondent.
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the respondent/applicant.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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JOSEPH JOHN KIBURI………..……………….……APPELLANT
VERSUS
ATANAS OMUROKA…………….………..….1ST RESPONDENT
TIMOTHY OKUMU…………..………….…….2ND RESPONDENT
COLLINS OTIENO………….…..…………….3RD RESPONDENT
RULING
By the Chamber Summons dated 19/1/2011, the respondent seeks the dismissal of the appeal. The application is brought pursuant to Order 42 Rule 35 of the Civil Procedure Rules. This appeal was filed on 26/8/2004. Since then the appellant has not taken any steps towards its prosecution. Order 42 Rule 35of the Civil Procedure Rules allows the respondent to apply for dismissal of the suit if no steps have been taken 3 months after directions have been taken. In this case, no directions had been taken and the above cited provision does not give the respondent the right to move the court for dismissal.
Under Order 42 Rule 35(2) of the Civil Procedure Rules, if within one year of the service of the memorandum of appeal, the appeal has not been set down for hearing, the court can notify the parties to appear before a judge to show cause why the appeal cannot be dismissed. The appeal was filed on 26/8/2004, eight (8) years ago. The appellant went to sleep thereafter. The court cannot grant the respondents’ prayers because the court’s jurisdiction was not properly invoked, but the court on its own motion exercising its wide discretion can move and have the appeal dismissed.
Chesang & Co. Advocates who filed the appeal were duly served with the notice on 2/7/2012. They did not appear or file any reply. It is obvious the appellant is no longer interested in the appeal and the court exercises its discretion and orders the appeal dismissed with costs to the respondent/applicant.
DATED and DELIVERED this 19th day of November, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the appellant
Mr. Kairuki for the respondent
Kennedy – Court Clerk