[2007] KEHC 1580 (KLR)
The court held that the respondent's application to dismiss the appeal for want of prosecution was incompetent because it was brought under the wrong provision of the law. Specifically, dismissal for want of prosecution in appeals is governed by Order XLI Rule 31(1) of the Civil Procedure Rules, which requires that...
Source-derived case information.
- Citation
- [2007] KEHC 1580 (KLR)
- Parties
- Appellant: Musa Mudakha Shimini; Appellant: Sarah Sidia; Appellant: Jamin Mudakha; Respondent: David Lugalia
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 53 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application struck out as incompetent
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Application Incompetence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Musa Mudakha Shimini
Appellant
Sarah Sidia
Appellant
Jamin Mudakha
Appellant
David Lugalia
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the application to dismiss the appeal for want of prosecution was brought under the correct legal provisions.
- 2 Whether the appeal could be dismissed for want of prosecution before directions had been given.
Ratio Decidendi
The court held that the respondent's application to dismiss the appeal for want of prosecution was incompetent because it was brought under the wrong provision of the law. Specifically, dismissal for want of prosecution in appeals is governed by Order XLI Rule 31(1) of the Civil Procedure Rules, which requires that directions must first be given before such an application can be entertained. In this case, no directions had been given, and the application was instead brought under Order XVI Rule 5, which does not apply to appeals. Consequently, the application was struck out as incompetent.
Court Disposition
application struck out as incompetent
Orders
- The application dated 7-8-2002 is struck out.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
Civil Appeal 53 of 2001
MUSA MUDAKHA SHIMINI
SARAH SIDIA
JAMIN MUDAKHA…………………….. APPELLANT
VERSUS
DAVID LUGALIA………….………...RESPONDENT
RULING
The Respondent, DAVID LUGALIA, applied on 8-8-2002 by way of a Notice of Motion dated 7-8-2002 under Order XVI Rules 5 of the Civil Procedure Rules to have the appeal herein dismissed for want of prosecution. The application was supported by the affidavit of Advocate Charles Keverenge who averred in it that the appeal was admitted to hearing. The record shows that the admission was on 14/01/02. The application does not show that directions have been given in this appeal. Rule 8B (1) of Order XLI shows that the Registrar is enjoined to enlist the appeal for the giving of directions by a judge in Chambers. Rule 8B (1) of Order XLI stipulates:-
“8 B (1) On notice to the parties delivered not less than twenty-one days after the date of service of the memorandum of appeal the registrar shall list the appeal for the giving of directions by a judge in chambers.”
Dismissal of an appeal for want of prosecution is not premised on order XVI Rule 5 of the Civil Procedure Rules. It is under Rule 31 (1) of Order XLI of the Civil Procedure Rules which reads:-
“Rule 31 (1)Unless within three months after the giving of directions under rule 8B the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.”
The application was based on the wrong provisions of the law. It is incompetent. It is truck out.
Dated at Kakamega this 8th day of November, 2007.
G. B. M. KARIUKI
J U D G E