[2011] KEHC 3379 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for over three months after directions were taken, and provided no explanation for the delay. The court held that the respondent was entitled to seek dismissal for want of prosecution under Order XLI rule 31(2) of the Civil...
Source-derived case information.
- Citation
- [2011] KEHC 3379 (KLR)
- Parties
- Appellant: Matanya Estate Limited; Respondent: Anthony Benson Wanyeki Gatoto; Respondent: The District Lands Registrar Nyeri
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 107 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure, Civil Appeal Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Matanya Estate Limited
Appellant
Anthony Benson Wanyeki Gatoto
Respondent
The District Lands Registrar Nyeri
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 XLI rule 31 of the Civil Procedure Rules.
- 2 Whether the appellant provided sufficient explanation for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for over three months after directions were taken, and provided no explanation for the delay. The court held that the respondent was entitled to seek dismissal for want of prosecution under Order XLI rule 31(2) of the Civil Procedure Rules. The appellant's reliance on the oxygen principle was unavailing in the absence of any explanation for the delay. The court concluded that the appellant had lost interest in the appeal and ordered its dismissal with costs to the first respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the first respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
AT NYERI
CIVIL APPEAL NO. 107 OF 2007
MATANYA ESTATE LIMITED……………............................……APPELLANT/RESPONDENT
VERSUS
ANTHONY BENSON WANYEKI GATOTO…............................RESPONDENT/APPLICANT
THE DISTRICT LANDS REGISTRAR NYERI....................................................RESPONDENT
RULING
Pursuant to the provisions ofOrder XLI rule 31 of the Civil Procedure Rules, Anthony Benson Wanyeki Gatoto, took out the Summons dated 9th August 2010 in which he applied for the appeal to be dismissed for want of prosecution. The Applicant swore an affidavit in support of the motion. The Appellant filed grounds of opposition to resist the Motion.
The main ground raised and argued on appeal is to the effect that the appeal was admitted to hearing on 16th March 2010 and the Appellant has taken no steps to prosecute the appeal nor comply with the provisions ofOrder XLI rule 8B of the Civil Procedure Rules. In short, it is alleged that the Appellant has lost interest to pursue the appeal. The Appellant admitted that there was a delay to prosecute the appeal. It however, beseeched the court to apply the oxygen principle to spare the appeal.
It is not in doubt that underOrder XLI rule 31 (2) of the Civil Procedure Rules, that, a Respondent is entitled to apply for the appeal to be dismissed if three months pass before the appeal is listed for hearing. The record shows that directions were taken about 4 months before the motion was filed. There was a delay which was not explained. The Appellant was enjoined to give reasons why the Motion should not be allowed, but it chose not to do so. I have absolutely no reason why I should deny the 1st Respondent that right. I am convinced the Appellant has lost the interest to pursue this appeal. The same is ordered dismissed for want of prosecution with costs to the 1st Respondent.
Dated and delivered at Nyeri this 1st day of April 2011.
J. K. SERGON
JUDGE
In open court in the presence of Mr. Mahan for the Respondent N/A for Ng’ang’a for Appellant.
J.K. SERGON
JUDGE