[2010] KEHC 3752 (KLR)
The court found that the appeal had not yet been admitted to hearing and that the responsibility for listing the appeal for directions rests with the court, not the appellant. Since the prerequisites for hearing had not been completed and no directions had been given, the application for dismissal for want of...
Source-derived case information.
- Citation
- [2010] KEHC 3752 (KLR)
- Parties
- Appellant: Lochab Brothers Ltd; Respondent: Lilian Mumbi Nganga; Respondent: Moses Nyongesa; Respondent: Nancy Mwaura
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 114 of 2006
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed as premature
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Court Directions, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lochab Brothers Ltd
Appellant
Lilian Mumbi Nganga
Respondent
Moses Nyongesa
Respondent
Nancy Mwaura
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to the appellant's delay.
- 2 Whether the prerequisites for hearing the appeal have been fulfilled.
- 3 Whether the responsibility for listing the appeal for directions lies with the appellant or the court.
Ratio Decidendi
The court found that the appeal had not yet been admitted to hearing and that the responsibility for listing the appeal for directions rests with the court, not the appellant. Since the prerequisites for hearing had not been completed and no directions had been given, the application for dismissal for want of prosecution was premature. The court also noted the uncontroverted fact that the 3rd respondent had passed away and no substitution had been made, further indicating the appeal was not ready for hearing. Therefore, the application was dismissed as premature, but the appellant was encouraged to move the Deputy Registrar to process the appeal expeditiously.
Court Disposition
application dismissed as premature
Orders
- The application for dismissal of the appeal for want of prosecution is dismissed with costs.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 114 of 2006
LOCHAB BROTHERS LTD:……...……………..APPELLANT
VERSUS
LILIAN MUMBI NGANGA.…….....…..…..1ST RESPONDENT
MOSES NYONGESA:….……….…..……2ND RESPONDENT
NANCY MWAURA:……….……….………3RD RESPONDENT
RULING
This is an application by way of summons in chambers brought under Order XLI Rule 3(1) (2) of Civil Procedure Act and all other enabling provisions of the Law. It prays for Orders that the Appeal herein filed be dismissed for want of prosecution and for the costs of the application. It is brought on the grounds that the Appellant has not taken any steps to file the Record of Appeal and the Respondents should not be kept in indefinite abeyance by the Appellant’s reluctance in prosecuting the Appeal and that litigation must come to an end. The application is supported by the sworn affidavit of Donald O. Owang, counsel for the Respondents. In reply to the application counsel for the Appellant has sworn an affidavit in opposition and states that the delay in prosecuting the Appeal has been caused by no fault on the part of the Appellant. It is stated that the pre-liquisites to hearing the appeal have not been done and that the appeal has not even been admitted to hearing and no directions have been given and that there is nothing the Appellant was obliged to do which it has not done.
It is admitted by both sides that to date the Appeal has not been admitted to hearing. The function of having the Appeal admitted is not of the Appellant’s but of the court, see S.79B of the Civil Procedure Act and Order XLI rule 8B which require the Registrar of the court to list the Appeal for purposes of giving directions by a judge in chambers has also not been done and thereby Rule 31 (1) of the Civil Procedure Rules under which the application is brought cannot apply. The Appellant’s assertion that the 3rd Respondent has since passed on and no substitution has been done was not controverted and that would appear to be yet another reason why the appeal herein is not ready for hearing.
This appeal is not for dismissing for the reason of its none prosecution. However the application under consideration must have stirred the Appellant to quickly and diligently move the Deputy Registrar of this court to process the Appeal.
For those reasons the application under consideration is found to be premature and it is accordingly dismissed with costs.
DATED AND DELIVERED AT ELDORET THIS 25TH DAY OF FEBRUARY 2010.
P.M.MWILU
JUDGE
IN THE PRESENCE OF:-
Paul Ekitela - Court Clerk
Mr. Manani - Advocate for the Respondent
Mr. Chemoiyai holding brief for Mr. Marube for Mr. Kimondi.