[2012] KEHC 4478 (KLR)
The court held that the application for dismissal of the appeal for want of prosecution was premature because the requirements of Order 42 rule 35(2) of the Civil Procedure Rules had not been satisfied. Specifically, the appeal had not yet been admitted and directions had not been given, which are prerequisites for...
Source-derived case information.
- Citation
- [2012] KEHC 4478 (KLR)
- Parties
- Appellant: Kiran T Chavda; Respondent: John Wainaina Mwati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 64 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed with costs to the appellant
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Execution, Running Down Actions, Material Loss Damage
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kiran T Chavda
Appellant
John Wainaina Mwati
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 under Order 42 rule 35(2) Civil Procedure Rules.
- 2 Whether the applicant is entitled to seek dismissal before the appeal is admitted and directions are given.
Ratio Decidendi
The court held that the application for dismissal of the appeal for want of prosecution was premature because the requirements of Order 42 rule 35(2) of the Civil Procedure Rules had not been satisfied. Specifically, the appeal had not yet been admitted and directions had not been given, which are prerequisites for an application for dismissal under this provision. Furthermore, only the Deputy Registrar is empowered to issue notice to the parties before the file is placed before a judge for dismissal. The court also noted that the delay in prosecuting the appeal was partly attributable to the subordinate court's failure to avail the lower court file and proceedings, which hindered the...
Court Disposition
application dismissed with costs to the appellant
Orders
- The application dated 10th October 2011 seeking dismissal of the appeal for want of prosecution is dismissed.
- Costs of the application are awarded to the appellant.
Full Case Text
Judgment text and source record
77 paragraphs
Editorial Summary
1. Civil Appeal
2. Civil Practice and Procedure
3. Subject of subordinate court case
TORT
3. 1 Running down cause
3. 2 Material loss damage
3. 3 Appellant/original defendant appeals against
liability and quantum from judgment of
28th December 2006 on 6th February 2007.
3. 4 Application for stay of execution pending
hearing of appeal granted on 19th April 2007
on condition sum of Ksh. 66,461/- is deposited
in an interest earning account.
3. 5 There is no action on the file for 4 years.
4. Application dated 10th October 2011
4. 1 Seeking orders to dismiss appeal for
want of prosecution.
4. 2 That for 4 years no action has been taken
on the file in reply by appellant.
4. 3 Several letters written to court seeking
the proceedings and copies of the typed judgments.
4. 4 Several letters displayed and annexed to
affidavit being 5th February 2007
23rd January 2008
19th December 2011
and 16th January 2011 (read 2012)
notifying of warrants of attachment being issued.
5. Held:
i) Order 42 r 35(2) Civil Procedure Rules is not
available to the appellant.
ii) Application dismissed.
iii) Compliance of Order 42 r 13 and Section 79B
Civil Procedure Act have not been made.
6. Case Law:
7. Advocates:
i) M Odawa instructed by Pramod Patel & Co Advocates for
applicant
ii) Mulandi instructed by Njeri Mburu & Co Advocates for
respondent
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAIROBI
MILIMANI LAW COURTS
Civil Appeal 64 of 2009
KIRAN T CHAVDA ………….…….……………...… APPELLANT
VERSUS
JOHN WAINAINA MWATI ….………………….... RESPONDENT
(Being an appeal from the Judgment of Hon. D. Toigat (Senior Resident Magistrate) in Case No. 8344 of 2002 dated 28th december 2006 at Nairobi)
R U L I N G
Application for dismiss appeal
For want of prosecution
Under Order 42 r 35(2) Civil Procedure Rules
I.INTRODUCTION
1. Judgment was delivered against the appellant/original defendant
Kiran T Chavda, in the subordinate court case at the Milimani Commercial Court on the 28th December 2006. Being dissatisfied with the decision that was a tort case covering material loss damage, he filed appeal on 6th February 2007.
2. An application for stay of execution was also granted by the High Court on 19th April 2007 on condition that a sum of Ksh. 66,461/- is deposited to court (Waweru J).
3. For 4 years, no action had been taken on the file. The respondent original plaintiff filed an application dated 10th October 2011 seeking to have the appeal dismissed for want of prosecution.
IIAPPLICATION 10TH OCTOBER 2011
4. The application had been brought under Order 42 r 35(2) Civil Procedure Rules. The arguments being that for 4 years that the appeal had been filed, no action had been taken on the said file.
5. The appellant filed a replying affidavit and respondent by stating that he had been asking for the proceedings and judgment but has received no response to the matter. Letters to the courts dated:
5th February 2007
23rd January 2008
19th December 2011
6. A warrant of attachment was conferred by the court to have been issued by a letter of 16th January 2011, despite there being a stay of execution that the application be dismissed.
7. Under Order 42 r 35(2) is not available to the applicant. This is because only the deputy registrar is permitted to issue notice upon the parties that he intends to place the file before the Hon. Judge for dismissal due to want of prosecution. Proof that the memorandum of appeal had been served upon the respondent and a lapse of 3 years passed must first be established before dismissal orders are made.
8. The applicant can only come to court after the appeal has been admitted and directions given, to either set the appeal down for hearing or after three months to apply for the appeal to be dismissed.
9. I note with regret the delay by the subordinate court to avail the lower court file for this to occur. It is hoped that this will be done without further delay.
10. The application is dismissed with costs to the appellant/respondent/original defendant.
DATED THIS 26TH DAY OF MARCH 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i) M Odawa instructed by Pramod Patel & Co Advocates for
applicant
ii) Mulandi instructed by Njeri Mburu & Co Advocates for
respondent