[2012] KEHC 2708 (KLR)
The court found that the appeal had not been set down for hearing since directions were given in March 2009, and that the application to dismiss the appeal was unopposed. Under Order XLI Rule 31(2) of the Civil Procedure Rules, the court is empowered to dismiss such an appeal. The absence of opposition and the...
Source-derived case information.
- Citation
- [2012] KEHC 2708 (KLR)
- Parties
- Appellant: Levin Kimeu Mulei; Respondent: James Musyoka Nyamai
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 28 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application allowed. Appeal dismissed for want of prosecution. Costs to the applicant. Security for costs, if deposited, to be released to the applicant.
- Judges
- GMA Dulu
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Levin Kimeu Mulei
Appellant
James Musyoka Nyamai
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 XLI Rule 31(2) of the Civil Procedure Rules.
- 2 Whether the security for costs deposited by the applicant should be released upon dismissal of the appeal.
Ratio Decidendi
The court found that the appeal had not been set down for hearing since directions were given in March 2009, and that the application to dismiss the appeal was unopposed. Under Order XLI Rule 31(2) of the Civil Procedure Rules, the court is empowered to dismiss such an appeal. The absence of opposition and the prolonged inaction by the appellant justified the dismissal. Furthermore, the court held that any security for costs deposited by the applicant should be released to him, as the appeal was now dismissed and there was no longer any basis for retaining the security.
Court Disposition
Application allowed. Appeal dismissed for want of prosecution. Costs to the applicant. Security for costs, if deposited, to be released to the applicant.
Orders
- The appellant/respondent’s appeal against the respondent/applicant is dismissed with costs to the respondent/applicant.
- Costs of the application awarded to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MACHAKOS
CIVIL APPEAL 28 OF 2008
LEVIN KIMEU MULEI..........................................................................APPELLANT/RESPONDENT
VERSUS
JAMES MUSYOKA NYAMAI..............................................................RESPONDENT/APPLICANT
R U L I N G
Before me is a an application by way of Chamber Summons dated 29th September 2010, filed by James Musyoka Nyamai, the respondent in the appeal. It was filed under Order XLI rule 31(2) of the Civil Procedure Rules and section 3A of the Civil Procedure Act (Cap 21). It seeks the following orders:-
1. That the appellant/respondent’s appeal against the respondent/applicant be dismissed with costs to the respondent/applicant.
2. That costs of this application be provided for.
In the grounds of the application, it was stated that since the court gave directions on the appeal on 13th March 2009, the appeal has not been set down for hearing.
The application is not opposed. On the hearing date which was 6th June 2012, nobody for the appellant appeared in court. Counsel for the applicant Mr Mulu, urged the court to allow the application. Counsel also asked that the amount deposited in court as security for costs be released.
This application is not opposed. Under Order XLI Rule 31(2) of the Civil Procedure Rules, this court has power to dismiss an appeal which has not been set down for hearing after one year from service of the memorandum of appeal. The appeal, not having been set down for hearing from 2009, and this application being unopposed, I find no reason not to allow the application. The effect will be to dismiss the appeal. If the respondent in the appeal, who is the applicant herein, had deposited money as security for costs, I find no reason for the same not to be released, if the appeal is now dismissed.
I allow the application and grant prayer 1. The costs of this application will be to the applicant. In case, the applicant has deposited money as security for costs, same be released to him.
It is so ordered.
Dated and delivered this 18thday of July 2012.
................................
George Dulu
Judge
In the presence of:
Nyalo – Court clerk
N/A for Appellant
Mulu for Respondent present