[2019] KEHC 2091 (KLR)
The court found that since the filing of the appeal, no step had been taken by the appellants or their counsel to progress the matter. The application for dismissal was not opposed, and the record confirmed the inaction. The court held that the respondent's application had merit and there was no reason to disallow...
Source-derived case information.
- Citation
- [2019] KEHC 2091 (KLR)
- Parties
- Appellant: Nazish Motors Ltd; Appellant: Jackson Oginda; Respondent: Mercy Moraa Wafula
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 2018
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution. Costs awarded to the respondent.
- Judges
- GMA Dulu
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Process, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nazish Motors Ltd
Appellant
Jackson Oginda
Appellant
Mercy Moraa Wafula
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellants.
- 2 Whether the respondent is entitled to costs of the application and the appeal.
Ratio Decidendi
The court found that since the filing of the appeal, no step had been taken by the appellants or their counsel to progress the matter. The application for dismissal was not opposed, and the record confirmed the inaction. The court held that the respondent's application had merit and there was no reason to disallow it. Consequently, the appeal was dismissed for want of prosecution, and the respondent was awarded costs of both the application and the appeal.
Court Disposition
Appeal dismissed for want of prosecution. Costs awarded to the respondent.
Orders
- The appeal is dismissed for want of prosecution.
- The respondent is awarded costs of both the application and the appeal.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERICHO
CIVIL APPEAL NO.4 OF 2018
(Appeal arising from the Judgment and decree of Kericho
CM CC No.4 of 2015 by Hon. S. Mokua – CM)
NAZISH MOTORS LTD...........................................................................1ST APPELLANT
JACKSON OGINDA.................................................................................2ND APPELLANT
VERSUS
MERCY MORAA WAFULA................................................APPLICANT/RESPONDENT
RULING
1. Before me is a Chamber Summons dated 24th July 2019 for dismissal of suit (appeal) for want of prosecution.
2. This appeal was filed on 21st February 2018 through counsel M/s Kairu & McCourt Advocates.
3. Since then no progress in the appeal was recorded, and therefore on 21st September 2019 the respondent Mercy Moraa Wafula filed the present Chamber Summons dated 24th July 2019 through counsel M/S E. M. Juma & Ombui for dismissal of the suit (appeal), for want of prosecution, which application was brought under Order 42 Rules 11 and 13 (1) and (2) and Order 35 Rule 1 and 2 of the Civil Procedure Rules 2010, as well as section 3A of the Civil Procedure Act (Cap.21).
4. The application has grounds on the face of the Chamber Summons and is supported by an affidavit sworn on 24th July 2019 by Evans Juma Matunda Advocate for the applicant (respondent), with the main ground of the application being that more than 3 months had lapsed since the appellants filed their Memorandum of Appeal, and thereafter the appellants had so far not yet caused it to be listed for directions before a Judge in Chambers.
5. The application is not opposed, though an affidavit of service was filed. On the hearing date Mr. Mbeche for the applicant urged the court to allow the application.
6. I have considered the application, and perused the file. From the record, it is true that no step has been taken by the appellant or counsel since the filing of the appeal. The application is also not opposed. In my view therefore, the application not being opposed has merits, and there is no reason to disallow the same.
7. I thus allow the application and dismiss the appeal for want of prosecution. The applicant is hereby awarded costs of both the application and the appeal.
Dated at Kericho this 18th November, 2019.
George Dulu
JUDGE