[2018] KEHC 1679 (KLR)

[2018] KEHC 1679 (KLR)

The court found that the appeal had not been admitted for hearing as required by Section 79B of the Civil Procedure Act, and directions under Order 42 Rule 35(1) of the Civil Procedure Rules had not been given. Without these procedural steps, the application for dismissal for want of prosecution was premature. The court emphasized that dismissal is a drastic measure and should only be taken in clear cases where all procedural requirements have been satisfied. Since the appellant had not refused to comply with the rules and the record was not complete for directions, the application to dismiss the appeal failed. The appellant was directed to list the appeal for hearing within 120 days.

Citation
[2018] KEHC 1679 (KLR)
Parties
Appellant: Masterpower Systems Ltd; Respondent: Public Procurement Administration Review Board; Respondent: Tourism Fund; Respondent: Central Electricals International Ltd; Respondent: Glama Electrical & Mechanical Company Ltd
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
5 December 2018
Case Number
Civil Appeal 45 of 2015
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Outcome
application dismissed
Judges
A Mbogholi-Msagha
Legal Topics
Dismissal for Want of Prosecution, Appeal Admission, Directions in Appeals, Court Discretion, Procedural Requirements
Source Language
English
Civil Procedure Dismissal for Want of Prosecution Appeal Admission Directions in Appeals Court Discretion Procedural Requirements

Case Brief

Summary, issues, holding and outcome

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Parties

Masterpower Systems Ltd

Appellant

Public Procurement Administration Review Board

Respondent

Tourism Fund

Respondent

Central Electricals International Ltd

Respondent

Glama Electrical & Mechanical Company Ltd

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules.
  2. 2 Whether the appellant failed to take necessary steps to prosecute the appeal.
  3. 3 Whether the procedural requirements for dismissal of an appeal have been met.

Ratio Decidendi

The court found that the appeal had not been admitted for hearing as required by Section 79B of the Civil Procedure Act, and directions under Order 42 Rule 35(1) of the Civil Procedure Rules had not been given. Without these procedural steps, the application for dismissal for want of prosecution was premature. The court emphasized that dismissal is a drastic measure and should only be taken in clear cases where all procedural requirements have been satisfied. Since the appellant had not refused to comply with the rules and the record was not complete for directions, the application to dismiss the appeal failed. The appellant was directed to list the appeal for hearing within 120 days.

Court Disposition

application dismissed

Orders

  • The application to dismiss the appeal for want of prosecution is dismissed.
  • The appellant shall cause the appeal to be listed for hearing within 120 days from the date of this ruling.