[2007] KEHC 2348 (KLR)
The court held that the respondent's application to dismiss the appeal for want of prosecution was premature because directions under Rule 8B of the Civil Procedure Rules had not been given. The rule expressly requires that directions must be issued before a party can move for dismissal for want of prosecution....
Source-derived case information.
- Citation
- [2007] KEHC 2348 (KLR)
- Parties
- Appellant: Kirinyaga General Machinery; Respondent: Hezekiel Muriithi Ireri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application struck out with costs to the respondent. Directions given for hearing of the appeal.
- Legal Topics
- Dismissal for Want of Prosecution, Directions Under Rule 8b, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kirinyaga General Machinery
Appellant
Hezekiel Muriithi Ireri
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 where directions under Rule 8B have not been given.
- 2 Whether the respondent is entitled to costs for the application to dismiss the appeal.
Ratio Decidendi
The court held that the respondent's application to dismiss the appeal for want of prosecution was premature because directions under Rule 8B of the Civil Procedure Rules had not been given. The rule expressly requires that directions must be issued before a party can move for dismissal for want of prosecution. Since no such directions had been given in this matter, the application could not be entertained. However, the court acknowledged the inordinate delay by the appellant in prosecuting the appeal and, while declining to dismiss the appeal, ordered that the costs of the application be borne by the appellant. The court also proceeded to give directions for the hearing of the appeal,...
Court Disposition
Application struck out with costs to the respondent. Directions given for hearing of the appeal.
Orders
- The Chamber Summons dated 9th October 2006 is hereby struck out with costs to the respondent.
- The court gives directions that the record of appeal is in order and the appeal shall be heard for half a day at Nyeri.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
Civil Appeal 98 of 2003
KIRINYAGA GENERAL MACHINERY……………APPLICANT
Versus
HEZEKIEL MURIITHI IRERI……………..……..RESPONDENT
RULING
The Appellant in this appeal filed the appeal on 6th August 2003. On the same day the Appellant filed an application for stay pending appeal. The ruling of that application was on 25th November 2003. Stay of execution was granted on condition that the Appellant would continue to pay rent at the old rate. The matter thereafter ‘went to sleep’.
The Respondent has approached the court by way of Chamber Summons dated 9th October 2006. By that application the Respondent seeks an order for the dismissal of the appeal for want of prosecution. The same is made on the grounds that, there had been no steps taken by the Appellant for 2 ½ years and that the Appellant is not serious with the appeal. That application brought under Order KLI Rule 31 (1) of the Civil Procedure Rules. That rule provides:
“Unless within three months after the giving of directions under rule 8Bthe 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”. (underlining mine)
It is clearly seen from that rule before the Respondent can move the court either to set the appeal down for hearing or to apply for dismissal for want of prosecution directions ought to have been given as provided in Rule 8B. Directions have never been given in this matter. Directions having not been given the orders sought by the Respondent cannot be entertained. That as it may be, the court does indeed note that there has been inordinate delay in prosecuting this appeal and accordingly as much as the orders will not be given the costs of the Chamber Summons shall be borne by the Appellant. I am also minded to give directions hereof.
The final orders of the court therefore are as follows:
(1) That the Chamber Summons dated 9th October 2006 is hereby struck out with costs to the Respondent.
(2) The court does hereby give directions in respect of this appeal that, the record of appeal is in order, that the appeal shall be heard for ½ day at Nyeri.
Dated and delivered at Nyeri this 29th day of June 2007.
MARY KASANGO
JUDGE