[2018] KEHC 9022 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal since its filing on 24th March, 2014. No record of appeal had been filed, and the lower court file was available. The respondent neither opposed the application nor appeared at the hearing. The court held that this inaction...
Source-derived case information.
- Citation
- [2018] KEHC 9022 (KLR)
- Parties
- Appellant: Modern Coast Express Ltd; Respondent: Yahya Sahib Ahmed; Respondent: James Menza Tewa; Respondent: Omar Ali Mohamed; Respondent: David Kimeu Nduva; Respondent: Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 98 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal for Want of Prosecution
- Outcome
- application allowed; appeal struck out for want of prosecution
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Abuse of Court Process, Release of Decretal Amount
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Modern Coast Express Ltd
Appellant
Yahya Sahib Ahmed
Respondent
James Menza Tewa
Respondent
Omar Ali Mohamed
Respondent
David Kimeu Nduva
Respondent
Attorney General
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.
- 2 Whether the decretal amount deposited in court should be released to the respondents.
- 3 Whether costs should be awarded to the applicants.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal since its filing on 24th March, 2014. No record of appeal had been filed, and the lower court file was available. The respondent neither opposed the application nor appeared at the hearing. The court held that this inaction amounted to an abuse of the court process, justifying the striking out of the appeal, release of the decretal amount to the respondents, and award of costs to the applicants.
Court Disposition
application allowed; appeal struck out for want of prosecution
Orders
- The memorandum of appeal filed on 24th March, 2014 is struck out for want of prosecution.
- The decretal amount deposited in court shall be released to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 98 OF 2014
MODERN COAST EXPRESS LTD............APPELLANT/RESPONDENT
VERSUS
YAHYA SAHIB AHMED........................1ST RESPONDENT/APPLICANT
JAMES MENZA TEWA.........................2ND RESPONDENT/APPLICANT
OMAR ALI MOHAMED.......................3RD RESPONDENT/APPLICANT
DAVID KIMEU NDUVA.........................4TH RESPONDENT/APPLICANT
ATTORNEY GENERAL........................5TH RESPONDENT/APPLICANT
RULING
1. The application dated 22nd March, 2017 principally seeks orders that:
“1. The memorandum of appeal filed by the Applicant on the 24th March, 2014 be struck out for want of prosecution.
2. That the Decretal amount deposited in court be released to the Respondents.
3. The cost of this application be awarded to the 1st, 2nd, 3rd and 4th Respondents.”
2. It is stated in the affidavit in support that since the filing of the appeal on 24th March, 2014, the Respondent has not taken any steps to prosecute the same. It is further stated that the failure to prosecute the appeal is an abuse of the court process.
3. The application is not opposed. The Respondent did not file any papers in opposition to the application. The Respondent was also not present during the hearing of the application though served.
4. I have considered the application. The record confirms that the memorandum of Appeal was filed on 24th March, 2014. The Lower Court file was availed to this court. No Record of Appeal has yet been filed. Indeed no step has been taken herein by the Respondent since the filing of the appeal. This amounts to abuse of the court process.
5. With the foregoing, I allow the application with costs to the Applicants.
Date, signed and delivered at Nairobi this 1st day of March, 2018
B. THURANIRA JADEN
JUDGE