[2005] KEHC 2049 (KLR)
The court held that since the lower court record had not been submitted and the appeal had not been admitted to hearing, no directions had been given. Therefore, the appeal was not ripe for hearing, and the application for its dismissal for want of prosecution was premature. The court emphasized that dismissal for...
Source-derived case information.
- Citation
- [2005] KEHC 2049 (KLR)
- Parties
- Appellant: Mark Munandi; Respondent: Shem Nyambasi
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 85 of 2003
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- Application dismissed with costs to the Appellant.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Directions Before Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mark Munandi
Appellant
Shem Nyambasi
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 before admission and directions are given.
- 2 Whether the application for dismissal is premature in the absence of the lower court record and directions.
Ratio Decidendi
The court held that since the lower court record had not been submitted and the appeal had not been admitted to hearing, no directions had been given. Therefore, the appeal was not ripe for hearing, and the application for its dismissal for want of prosecution was premature. The court emphasized that dismissal for want of prosecution under Order XLI Rule 31 can only occur after the appeal is admitted and directions are issued. As these procedural steps had not been completed, the Respondent's application was dismissed as misconceived in law.
Court Disposition
Application dismissed with costs to the Appellant.
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- Costs of the application are awarded to the Appellant.
Full Case Text
Judgment text and source record
8 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA CIVIL APPEAL NO. 85 OF 2003
(Appeal from the Orders of the Chief Magistrate at Kakamega, A. O. Muchelule Esq., in CMCC No. 1053 of 1995 delivered on 20/12/2002)
MARK MUNANDI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT V E R S U S SHEM NYAMBASI :::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT
RULING The Respondent in the appeal herein, Shem Nyambasi, applied by Chamber Summons dated 10-8-2004 for an order to dismiss the appeal for want of prosecution. The application was premised on Order XLI Rule 31 of the Civil Procedure Rules and section 3A of the Civil Procedure Act, Cap 21 of the Laws of Kenya. It was supported by an affidavit of Charles Lutta Kasamani Esq., the Advocate for the Respondent who deposed that from the time the appeal was filed on 21-7-2003, the Appellant had not taken steps to prosecute it.
The application was opposed by the Appellant who filed grounds of objection dated 26-4-2005 through his advocates, C. O. Samba & Co. In the said grounds, the Appellant contended that the application by the Respondent was premature and misconceived in law because the appeal has not been admitted and no directions have hitherto given.
I have perused the application and given due consideration to the submissions made by both counsel.The record shows that the lower court record has not been submitted to this court although a request in this regard was made on 17-12-2003 following the filing of the appeal on 21-7-2003. Consequently the appeal has not yet been admitted to hearing and for this reason no directions have been given. The appeal is therefore not ripe for hearing and in the premises the application for its dismissal is premature. It is dismissed with costs.
Dated at Kakamega this 24th day of June, 2005.
G. B. M. KARIUKI J U D G E