[2020] KEELC 3789 (KLR)
The court found that the application to dismiss the appeal for want of prosecution was premature because the procedural step of taking directions under Order 42 Rule 13 had not yet occurred. Without directions, the timelines under Order 42 Rule 35(1) had not started running. Furthermore, the court noted that the...
Source-derived case information.
- Citation
- [2020] KEELC 3789 (KLR)
- Parties
- Appellant: Luciah Wanjiku Murima; Respondent: Amica Savings & Credit Limited; Respondent: Restores Consultant Auctioneers
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Muranga
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 15 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application struck out
- Judges
- BC Koech
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Procedure, Record of Appeal, Directions Under Order 42, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luciah Wanjiku Murima
Appellant
Amica Savings & Credit Limited
Respondent
Restores Consultant Auctioneers
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 of the Civil Procedure Rules.
- 2 Whether the application to dismiss the appeal was premature given the procedural steps not yet taken.
- 3 Whether the respondents have suffered or are likely to suffer prejudice due to the delay.
Ratio Decidendi
The court found that the application to dismiss the appeal for want of prosecution was premature because the procedural step of taking directions under Order 42 Rule 13 had not yet occurred. Without directions, the timelines under Order 42 Rule 35(1) had not started running. Furthermore, the court noted that the pendency of the appeal did not impede the hearing of the lower court case, as no stay of proceedings had been granted. Consequently, the respondents had not suffered, nor were they likely to suffer, any prejudice due to the delay. The court therefore struck out the application with no order as to costs.
Court Disposition
application struck out
Orders
- The application to dismiss the appeal for want of prosecution is struck out.
- No order as to costs.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT & LAND COURT
AT MURANG’A
ELCA 15 of 2018
LUCIAH WANJIKU MURIMA.........................................APPELLANT/RESPONDENT
VERSUS
AMICA SAVINGS & CREDIT LIMITED................1ST RESPONDENT /APPLICANT
RESTORES CONSULTANT AUCTIONEERS.......2ND RESPONDENT /APPLICANT
RULING
1. The application is brought under a Notice of Motion filed on the 22/11/19 and dated the 13/11/19 seeking orders that the Appeal be dismissed for want of prosecution.
2. The application is supported by the grounds that the period of one year has lapsed since the Appellant filed her Appeal and no steps have been taken to file and serve the Record of Appeal nor to fix the Appeal for directions/hearing. That the delay is inordinate.
3. The application is further supported by the Supporting Affidavit of Jonathan Ngumo Mbogo who deponed and reiterated the grounds in support of the application. That the Applicant has been prejudiced in terms of increased costs and the delay in determining the suit in the lower Court occasioned by the pendency of this Appeal.
4. Order 42 Rule 35 of the Civil Procedure Rules states 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”.
5. I have perused the record and find that the Memorandum of Appeal was filed on the 14/9/18. In according with the dictates of Order 42 Rule 35 (1) the action of the Respondent should come three months after the giving of directions under Rule 13 of the said order. The said Rule 13 states as follows;
“On notice to the parties delivered not less than twenty-one days after the date of service of the Memorandum of Appeal the Appellant shall cause the Appeal to be listed for the giving of directions by a judge in chambers”
6. My perusal of the record shows that direction is yet to be taken under Order 42 Rule 13. It is also correct that the Appellant has not filed and served the record of Appeal. It then follows that the procedure adopted by the Applicant is premature.
7. That said it is observed that there is no lacuna in the procedural steps to be taken as such circumstances are addressed by Order 42 Rule 35(2) of the Civil Procedure Rules.
8. The Court observes that the pendency of this Appeal is not an impediment to the hearing of the case in the lower Court except where a stay of proceedings has been granted. In this case there is neither stay of proceedings issued by the Court below nor by this Court. This Court finds that there is no prejudice suffered or likely to be suffered by the Respondent.
9. For those reasons the Court is of the view that the application is for striking out with no orders as to costs.
10. It is so ordered.
DELIVERED, DATED AND SIGNED AT MURANG’A THIS 16TH DAY OF JANUARY 2020.
J G KEMEI
JUDGE
Delivered in open Court in the presence of;
Appellant: Absent
Ms Ajiambo HB for Mbogo for the 1st and 2nd Respondents
Irene and Kuiyaki, Court Assistants