[2005] KEHC 867 (KLR)
The court held that the application to dismiss the appeal for want of prosecution was misconceived because no directions had been given in the appeal as required by the Civil Procedure Rules. The court cannot dismiss an appeal for want of prosecution before directions are given. Instead, the court granted the...
Source-derived case information.
- Citation
- [2005] KEHC 867 (KLR)
- Parties
- Respondent: Michael Gacoki Gicheru; Appellant: Joseph Karoria Gicheru
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 96 A of 1999
- Procedural Posture
- Civil Appeal / Interlocutory Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution dismissed as misconceived; appellant granted 21 days to comply with procedural requirements.
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Directions in Appeals, Record of Appeal, Land Disputes Tribunal, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Michael Gacoki Gicheru
Respondent
Joseph Karoria Gicheru
Appellant
Procedural Posture
Civil Appeal / Interlocutory Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the court can dismiss the appeal before directions have been given.
Ratio Decidendi
The court held that the application to dismiss the appeal for want of prosecution was misconceived because no directions had been given in the appeal as required by the Civil Procedure Rules. The court cannot dismiss an appeal for want of prosecution before directions are given. Instead, the court granted the appellant 21 days to comply with Order XLI rule 8B by filing the record of appeal and listing the matter for directions. If the appellant fails to comply, the Registrar is at liberty to list the appeal before a judge for dismissal under Order XLI rule 31(2). This approach ensures procedural fairness and adherence to the rules governing the prosecution and dismissal of appeals.
Court Disposition
Application for dismissal for want of prosecution dismissed as misconceived; appellant granted 21 days to comply with procedural requirements.
Orders
- The appellant is given 21 days to comply with Order XLI rule 8B of the Civil Procedure Code by filing the record of appeal and listing the matter for directions.
- If the appellant fails to comply, the Registrar is at liberty to list the appeal before a judge for dismissal under Order XLI rule 31(2) of the Civil Procedure Rules.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI Civil Appeal 96 A of 1999 MICHAEL GACOKI GICHERU …………………… RESPONDENT/APPLICANT VERSUS JOSEPH KARORIA GICHERU ……………………. APPELLANT/RESPONDENT
R U L I N G
Michael Gacoki Gicheru the Respondent/Applicant seeks to have the appeal filed herein dismissed for want of prosecution. It is the applicant’s contention that although the appeal was filed on 24th September 1999 to date, the appellant/Respondent has not taken any action to have a date for directions nor has he filed the record of appeal. As a result the appellant continues to enjoy the benefit of the land to the detriment of the applicant.
It is evident from the court file that this appeal was certified to be raising issues of law in accordance with section 8 of the land Disputes Tribunal Act on 31st May 2005. A letter was immediately sent to the appellants advocate requesting him to comply with Order 41 Rule 8B. To date the advocate has not done so.
It is evident that the application before the court is misconceived as no directions have been given by the court and therefore the court can only dismiss the appeal on its own motion.
I am now giving the appellant 21 days within which to comply with order XLI rule 8B of the Civil Procedure Code i.e. file the record of appeal and list the matter for directions failing which the Registrar of this court will be at liberty to list the appeal before a judge for dismissal under Order XLI rule 31 (2) of the Civil Procedure Rules.
Dated signed and delivered this 24th day of November 2005
H. M. OKWENGU
JUDGE