[2022] KEHC 11001 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal since the last court action on 5th December 2017. Despite efforts by the court to serve mention notices, the parties did not appear, and the appellant did not demonstrate any interest in pursuing the appeal. The delay in taking...
Source-derived case information.
- Citation
- [2022] KEHC 11001 (KLR)
- Parties
- Appellant: MWN (Suing on behalf of EN and TW-Minors); Respondent: Grace Wanja Ndungu; Respondent: Harun Simiyu
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 52 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- GWN Macharia
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Directions in Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
MWN (Suing on behalf of EN and TW-Minors)
Appellant
Grace Wanja Ndungu
Respondent
Harun Simiyu
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether directions had been taken in the appeal as required under the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal since the last court action on 5th December 2017. Despite efforts by the court to serve mention notices, the parties did not appear, and the appellant did not demonstrate any interest in pursuing the appeal. The delay in taking directions was deemed inordinate, indicating a lack of interest in the matter. The court concluded that keeping the appeal alive would be futile and, therefore, dismissed the appeal for want of prosecution in accordance with Order 42 Rule 35 of the Civil Procedure Rules.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- No orders as to costs.
Full Case Text
Judgment text and source record
27 paragraphs
MWN (Suing on behalf of EN and TW-Minors) v Ndungu & another (Civil Appeal 52 of 2017) [2022] KEHC 11001 (KLR) (19 July 2022) (Ruling)
Neutral citation: [2022] KEHC 11001 (KLR)
Republic of Kenya
In the High Court at Naivasha
Civil Appeal 52 of 2017
GWN Macharia, J
July 19, 2022
Between
MWN (Suing on behalf of EN and TW-Minors)
Appellant
and
Grace Wanja Ndungu
1st Respondent
Harun Simiyu
2nd Respondent
(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha Children Case No. 2 of 2017 delivered by Hon. Z. Abdul, RM delivered on the 31st day of October, 2017)
Ruling
1. The ruling relates to a Notice to Show Cause (NTSC) why the Appeal should not be dismissed for want of prosecution.
Background 2. The Appellant instituted the present appeal vide a Memorandum of Appeal filed on the 14th November, 2017 subsequent to being aggrieved with the decision of the trial court. A Notice of Motion application dated…………. Seeking a stay of execution of the judgment/decree was filed on an even date. The said application was compromised by consent between parties on the 5th day of December, 2017.
3. The parties have since the date of entering into a consent failed to appear before court. Attempts by the Court’s process server to supply them with mention notices on various occasions have proven futile as deposed in the affidavits of service. It was in view of the foregoing that the matter was reserved for NTSC why the appeal ought not to be dismissed for want of prosecution.
Analysis and Determination 4. Order 42 Rule 35 (1) of the Civil Procedure Rules stipulates as follows:-“Unless within three months after the giving of directions under rule 13 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”.
5. Further, Order 42 Rule 35 (2) of the Civil Procedure Rules stipulates as follows:-“If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal”
6. It is a requirement that once an appeal is lodged, it cannot be dismissed before directions are taken. However, in this particular instance, the Appellant has not demonstrated any interest in the appeal with the last time that the court was moved being on the 5th day of December, 2017.
7. The delay in taking directions is thus inordinate in the circumstances and would otherwise mean the Appellant has since lost interest in the said appeal. Efforts to trace the Appellant by the officers of the court have bore no fruit and the keeping the same alive for purposes of taking directions will be an exercise in futility.
Disposition 8. For all the foregoing reasons, the appeal is dismissed for want of prosecution with no orders as to costs.
9. It is so ordered.
DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of: