[2007] KEHC 2491 (KLR)
The court found that the appellant had not taken any steps to prosecute the appeal for nearly three years after serving the memorandum of appeal. The only action taken was the prosecution of an application for stay of execution, which was conditionally allowed in 2001. The appellant failed to provide any evidence to...
Source-derived case information.
- Citation
- [2007] KEHC 2491 (KLR)
- Parties
- Appellant: Kenya Alliance Insurance Co. Ltd; Respondent: John Mutuku Musyimi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 473 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Kenya Alliance Insurance Co. Ltd
Appellant
John Mutuku Musyimi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 41, rule 31(2) of the Civil Procedure Rules.
- 2 Whether the appellant has provided a satisfactory explanation for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not taken any steps to prosecute the appeal for nearly three years after serving the memorandum of appeal. The only action taken was the prosecution of an application for stay of execution, which was conditionally allowed in 2001. The appellant failed to provide any evidence to support its claim that it was waiting for a certified copy of the lower court proceedings. The court held that there was no satisfactory explanation for the delay and, therefore, dismissed the appeal for want of prosecution under Order 41, rule 31(2) of the Civil Procedure Rules, awarding costs to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed under Order 41, rule 31(2) of the Civil Procedure Rules.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 473 of 2004
KENYA ALLIANCE INSURANCE CO. LTD …………….PLAINTIFF
V E R S U S
JOHN MUTUKU MUSYIMI ………..…………………….DEFENDANT
R U L I N G
The Respondent in this appeal has moved the deputy registrar of the court to place the appeal before a judge in chambers for dismissal for want of prosecution under Order 41, rule 31(2) of the Civil Procedure Rules (the Rules). Under that rule, if, within one year after service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall, on notice to the parties, list the appeal before a judge in chambers for dismissal.
It is the Respondent’s case that the memorandum of appeal was served on 8th July, 2004, the same having been filed on the 7th the same month. Nearly three years have passed without the appeal being set down for hearing. The Respondent therefore seeks dismissal of appeal for want of prosecution. The Appellant’s response is that it is still interested in prosecuting the appeal and that it is waiting to be supplied with a certified copy of the proceedings of the lower court.
I have perused the court record. This appeal has never been admitted to hearing. Beyond prosecuting an application for stay of execution pending appeal, which was conditionally allowed on 6th October, 2001, the Appellant has never done anything towards prosecution of the appeal. No evidence has been tendered before the court to support the Appellant’s claim that it has been waiting to be supplied with a copy of the lower court proceedings. There is thus no satisfactory explanation given for the delay of nearly three (3) years in prosecuting the appeal.
In the event therefore this appeal be, and is hereby, dismissed under Order 41, rule 31(2) of the Rules with costs to the Respondent. Order accordingly.
DATED AT NAIROBI THIS 2ND DAY OF JULY 2007
H. P. G. WAWERU
J U D G E
DELIVERED THIS 6TH DAY OF MAY 2007