[2024] KEHC 8268 (KLR)
The court found that the preliminary objection filed by the respondent had been overtaken by events following earlier directions and was no longer pending for determination. The only matter remaining before the court was the substantive appeal. The appellant failed to file submissions as directed by the court, while...
Source-derived case information.
- Citation
- [2024] KEHC 8268 (KLR)
- Parties
- Appellant: Samuel Munga; Respondent: Ann Wairimu Thiga
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E276 of 2023
- Procedural Posture
- Civil Appeal / Interlocutory Directions on Submissions and Prosecution
- Outcome
- Directions issued for appellant to file submissions within 7 days or appeal deemed dismissed for want of prosecution.
- Judges
- RC Rutto
- Legal Topics
- Appeal Timelines, Dismissal for Want of Prosecution, Road Traffic Accidents, Damages Quantum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Samuel Munga
Appellant
Ann Wairimu Thiga
Respondent
Procedural Posture
Civil Appeal / Interlocutory Directions on Submissions and Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to failure to file submissions within the court-ordered timeline.
- 2 Whether the preliminary objection regarding the appeal's timeliness remains pending or has been overtaken by events.
Ratio Decidendi
The court found that the preliminary objection filed by the respondent had been overtaken by events following earlier directions and was no longer pending for determination. The only matter remaining before the court was the substantive appeal. The appellant failed to file submissions as directed by the court, while the respondent complied. In the interest of justice and expeditious disposal, the court granted the appellant a final seven-day period to file and serve submissions, failing which the appeal would stand dismissed for want of prosecution. The court scheduled a mention date to confirm compliance and to set a judgment date if appropriate.
Court Disposition
Directions issued for appellant to file submissions within 7 days or appeal deemed dismissed for want of prosecution.
Orders
- The appellant shall file and serve submissions within 7 days from the date of this ruling.
- In default of compliance, the appeal will be deemed dismissed for want of prosecution.
Full Case Text
Judgment text and source record
27 paragraphs
Munga v Thiga (Civil Appeal E276 of 2023) [2024] KEHC 8268 (KLR) (5 July 2024) (Ruling)
Neutral citation: [2024] KEHC 8268 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal E276 of 2023
RC Rutto, J
July 5, 2024
Between
Samuel Munga
Appellant
and
Ann Wairimu Thiga
Respondent
Ruling
1. This appeal arises from Kikuyu CMCC No. 232 of 2021 in which the Appellant was sued by the Respondent for general and special damages as well as expenses for future medical care arising from injuries, sustained in a road traffic accident on 14th June 2021 along Kahuho-Zambezi Road.
2. According to the plaint dated 17/8/2021 the Respondent was lawfully travelling in motor vehicle registration number KCA 037B, owned by the Appellant, as a fare-paying passenger when the Appellant’s driver/agent carelessly and or recklessly drove the said motor vehicle losing control of it thus causing the accident and occasioning injury to the Respondent.
3. The Appellant filed his defence, dated 7/9/2021, in which he denied the Respondent’s claim. In the alternative, he pleaded that if the accident did occur, the same was solely caused or substantially contributed by negligence on the part of the respondent.
4. The matter proceeded to hearing and the Respondent testified and called two witnesses. The Appellant did not call any witness and his case was closed for non-attendance.
5. The trial Court entered Judgement for the Respondent against the Appellant as follows:a.Liability 100%b.General damages Ksh.1,300,000c.Future medical expenses Ksh. 400,000d.Special damages Ksh. 17,219e.Costs of the suit with interest from date of judgement.
6. Aggrieved by the said determination, the Appellant filed this Appeal on various grounds. The Appellant thus prays for this appeal to be allowed with Costs and to have this Court set aside the Trial Court’s judgement on quantum and replace it with its own assessment.
7. Following the filing of this appeal, the respondent filed a preliminary objection dated 01/09/2023 seeking that the appeal be struck out having been filed out of time without leave of court. On 9th May 2024 the Court gave directions that the appeal be canvassed by way of written submissions. Following this, both parties complied, the appellant filed its submissions dated 31st October, 2023 while the respondents theirs dated 5th October 2023.
8. On the 3rd June 2024, this matter came before me for the first time. On this day the appellants were not represented while the respondent was represented by Ms. Kamau who was holding brief for Mr. Kibiku for the respondent. Counsel submitted and sought for a ruling date for they had uploaded their submissions dated 31st May 2024. Based on counsel submissions the Court was under an impression that a ruling was pending an proceeded to a ruling date of 5th July, 2024.
9. Subsequently, upon a read-through of the record it has emerged that the respondent filed a preliminary objection (P.O) dated 1st September, 2023. Directions were given on how the P.O was to be determined. After, several mentions and more specifically on 9th May 2024 in the presence of counsels for all parties the court directed that the P.O was overtaken by events.
10. It therefore follows that by the matter was being mentioned before me there was no P.O subject of which a ruling was pending. What remains for determination is the appeal dated 29th June 2023. I also note that on the 9th May 2024 the court directed that the appeal be canvased by way of submission where the appellant was granted six days to file and serve their submissions while the respondent was given 5 days after service to file theirs.
11. I have perused the record and note that since the directions were given, the appellant has not filed its submissions while the respondent filed theirs dated 31st May 2024. Consequently, in the interest of just and fast dispensation of this matter , I direct as follows;a.The appellant to file and serve its submissions within the next 7 days. In default, this appeal will be deemed dismissed for want of prosecution.b.Matter to be mention before this court on 25th July, 2024 to confirm compliance and taking a judgment date.
12. Orders accordingly
RHODA RUTTOJUDGEDELIVERED, DATED AND SIGNED ON 5TH THIS DAY OF JULY 2024 AT NAIROBIAppellant: N/aRespondent: Mr. Kamau H/b For Mr. KibikuCourt Assistant: Peter