[2024] KEHC 10413 (KLR)
The court found that although the appellant had delayed in filing the record of appeal and had not complied with directions for written submissions, directions on the hearing of the appeal had not yet been given because the record of appeal was not on file. The court held that the threshold for dismissal for want of...
Source-derived case information.
- Citation
- [2024] KEHC 10413 (KLR)
- Parties
- Appellant: Jeremiah Kongo Kihara t/a Kongo Kihara Foundation; Respondent: Joel Kibe t/a Bekira Enterprises Ltd; Respondent: Antony Macharia
- Court
- High Court
- Court Station
- High Court at Thika
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E025 of 2024
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; directions issued for further conduct of the appeal.
- Judges
- FN Muchemi
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Record of Appeal Filing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jeremiah Kongo Kihara t/a Kongo Kihara Foundation
Appellant
Joel Kibe t/a Bekira Enterprises Ltd
Respondent
Antony Macharia
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 42 Rule 35 of the Civil Procedure Rules.
- 2 Whether the appellant has complied with procedural requirements for progressing the appeal.
Ratio Decidendi
The court found that although the appellant had delayed in filing the record of appeal and had not complied with directions for written submissions, directions on the hearing of the appeal had not yet been given because the record of appeal was not on file. The court held that the threshold for dismissal for want of prosecution under Order 42 Rule 35 had not been met, as the procedural step of giving directions had not occurred. The court therefore declined to dismiss the appeal but imposed strict timelines for the appellant to file and serve the record of appeal, failing which the appeal would stand dismissed automatically.
Court Disposition
Application for dismissal for want of prosecution declined; directions issued for further conduct of the appeal.
Orders
- The appellant has 21 days to file and serve the record of appeal, failing which the appeal will be dismissed automatically for want of prosecution.
- Following filing and serving the record of appeal, parties to exchange submissions within 28 days.
Full Case Text
Judgment text and source record
24 paragraphs
Kihara t/a Kongo Kihara Foundation v Kibe t/a Bekira Enterprises Ltd & another (Civil Appeal E025 of 2024) [2024] KEHC 10413 (KLR) (23 August 2024) (Ruling)
Neutral citation: [2024] KEHC 10413 (KLR)
Republic of Kenya
In the High Court at Thika
Civil Appeal E025 of 2024
FN Muchemi, J
August 23, 2024
Between
Jeremiah Kongo Kihara t/a Kongo Kihara Foundation
Appellant
and
Joel Kibe t/a Bekira Enterprises Ltd
1st Respondent
Antony Macharia
2nd Respondent
Ruling
Brief Facts 1. The matter is for determination on whether the appeal ought to be dismissed for want of prosecution following the 2nd respondent’s oral application.
2. Dismissal of an appeal is provided for under Order 42 Rule 35 of the Civil Procedure Rules which stipulates as follows:-1. Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.2. If within one year after the 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.
3. The appellant herein lodged his appeal on 16th February 2024 following the ruling and order delivered on 18th January 2024 in the Business Premises Rent Tribunal in Nairobi Tribunal Case No. E125 of 2023. The appellant has not listed the matter for directions nor has he filed his record of appeal despite the copy of typed proceedings and ruling having been availed on 29th April 2024.
4. The appellant has only filed an application for stay of execution on 3rd March 2024. Following the court’s directions on 23rd April 2024 and he is yet to put in written submissions on the said application. The matter has come up for mention on three occasions whereby the appellant has attended one mention on 23rd April 2024.
5. From the record, it is evident that directions on the appeal have not yet been given on hearing of this appeal for the reason that the record of appeal has not been filed. The original file having been availed on 29/04/2024, the appellant ought to have filed and served the record of appeal. Instead, he put the cart before the horse by filing submissions even before directions on the hearing of the appeal were given. It is not clear whether this action was done inadvertently.
6. In the circumstances, I decline to dismiss the appeal and give the following directions:-a.That the appellant has 21 days to file and serve the record of appeal failure to which this appeal will be dismissed automatically for want of prosecution.b.That following the filing and serving the record of appeal, parties to exchange submissions within 28 days.c.Next mention to be on 30/09/2024.
7. It is hereby so ordered.
RULING DELIVERED VIRTUALY, DATED AND SIGNED AT THIKA THIS 23RDDAY OF AUGUST 2024. F. MUCHEMIJUDGE