[2019] KEHC 9681 (KLR)
The court found that although there had been a delay of about six months since the last action on record, the appeal had not yet been admitted for hearing nor had directions been given. The court held that the application to strike out the appeal was premature because the prescribed procedural steps for advancing...
Source-derived case information.
- Citation
- [2019] KEHC 9681 (KLR)
- Parties
- Appellant: Madhu Paper Kenya Limited; Respondent: Ronald Ntereba Rangoli
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal for Want of Prosecution
- Outcome
- application dismissed with directions for expeditious prosecution of appeal
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Execution, Appeal Procedure, Directions on Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Madhu Paper Kenya Limited
Appellant
Ronald Ntereba Rangoli
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution due to delay by the appellant.
- 2 Whether the order of stay of execution should be discharged and the decretal sum released to the respondent.
- 3 Whether the application to strike out the appeal is premature given the procedural steps not yet taken.
Ratio Decidendi
The court found that although there had been a delay of about six months since the last action on record, the appeal had not yet been admitted for hearing nor had directions been given. The court held that the application to strike out the appeal was premature because the prescribed procedural steps for advancing the appeal had not been taken by either the appellant or the Registrar. The court emphasized that striking out an appeal is a drastic remedy that should only be used sparingly, as it denies a party access to justice before all avenues are exhausted. The court further noted that the appellant had complied with the conditional stay order by depositing the decretal sum, indicating...
Court Disposition
application dismissed with directions for expeditious prosecution of appeal
Orders
- The application to strike out the appeal is dismissed.
- The appeal shall be prosecuted within 90 days from the date of this ruling, failing which it shall stand dismissed without recourse to the court.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 13 OF 2016
MADHU PAPER KENYA LIMITED ……APPELLANT/RESPONDENT
VERSUS
RONALD NTEREBA RANGOLI...………RESPONDENT/APPLICANT
RULING
This is an application by way of Chamber Summons dated 5th and filed on 12th June, 2018 seeking three substantive orders. There is a pending appeal lodged by the appellant challenging the lower court judgment which is in favour of the respondent/applicant.
This application seeks to strike out the said appeal for want of prosecution; discharge of the order of stay obtained by the appellant and directions for the release of the decretal sum deposited at Bank of Africa, Reinsurance Plaza branch by the appellant pursuant to a court order. The main reason advanced for seeking the said orders is that the appellant has not set down the appeal for directions, nor taken any steps within the prescribed time, and therefore has failed to show any intention to prosecute the appeal. The respondent/applicant accuses the appellant of taking advantage of the order for stay to frustrate him.
The application is opposed and there is a replying affidavit sworn by the advocate for the appellant. Both parties have filed submissions which I have noted. There is already a Record of Appeal filed on 10th November, 2017. The appeal itself has not been admitted for hearing nor have directions been given. I have looked at the provisions of law cited by the respondent/applicant and in particular Section 79 B of the Civil Procedure Act, and Order 42 of the Civil Procedure Rules.
Whereas it is true that a suit should not be left to hang over the head of a litigant for unnecessarily long period, there are occasions when such situations are dictated by circumstances entirely beyond the parties. Under the Act and Order 42 of the Civil Procedure Rules, there are steps prescribed which should be initiated by either the appellant or the Registrar of the court or both to advance the prosecution of an appeal. Those steps have not been taken and therefore the application is premature.
The striking out of any pleading which includes an appeal, is a drastic measure which should be applied sparingly. Such an action if allowed, has the result of locking out a party from the corridors of justice before the avenues of litigation are exhausted. That is not to say that parties should not be vigilant in the exercise of their duties in advancing the course of justice.
As at the time the application was filed, there was a delay of about six months from the last action on record. What is pending in this matter is the admission of appeal and giving directions as to the hearing. These two steps when weighed against the order sought for dismissal, justify the sustenance of the appeal subject to payment of costs occasioned by the delay.
I note that the order for stay of execution was conditional upon the appellant depositing the decretal sum as clearly shown by the record. That in itself was a demonstration that the appellant desires to have the appeal determined on merit.
I agree that litigation must come to an end and with that in mind, I shall as I hereby do, dismiss the application but order that the appeal shall be prosecuted within 90 days from the date hereof, failure of which it shall stand dismissed without any recourse to the court. The costs shall be in the appeal.
Dated, signed and delivered at Nairobi this 21st Day of February, 2019.
A. MBOGHOLI MSAGHA
JUDGE