[2005] KEHC 773 (KLR)
The court found that the respondent had lost interest in prosecuting the application for review filed on 29/3/99, as no steps had been taken since April 2002, and the respondent neither filed any response nor appeared at the hearing. Although the application for dismissal was brought under Order 41 Rule 31, which...
Source-derived case information.
- Citation
- [2005] KEHC 773 (KLR)
- Parties
- Appellant: Ngeli Maithya; Respondent: Kilonzo Muthuku
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 1993
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application for dismissal for want of prosecution allowed
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Review of Judgment, Inherent Jurisdiction
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngeli Maithya
Appellant
Kilonzo Muthuku
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the respondent's application dated 29/3/99 should be dismissed for want of prosecution.
- 2 Whether the court was properly moved under Order 41 Rule 31 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the respondent had lost interest in prosecuting the application for review filed on 29/3/99, as no steps had been taken since April 2002, and the respondent neither filed any response nor appeared at the hearing. Although the application for dismissal was brought under Order 41 Rule 31, which technically applies to appeals and not interlocutory applications, the court exercised its inherent jurisdiction under Section 3A of the Civil Procedure Act to dismiss the dormant application. The court reasoned that allowing the application to remain on record would unjustly prevent the appellant from realizing the fruits of his successful appeal. The absence of any opposition...
Court Disposition
application for dismissal for want of prosecution allowed
Orders
- The respondent's application dated 29/3/99 is dismissed with costs to the applicant.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
Civil Appeal 11 of 1993
NGELI MAITHYA ………………………….. APPELLANT
VERSUS
KILONZO MUTHUKU ………………….. RESPONDENT
(Appealing from the Judgement of the District Magistrate’s Court at Kilungu G.J. K Kiia Esq. of 3rd March 1993)
R U L I N G
The Appellant/Applicant seeks the dismissal of the applicant/Respondent’s application dated 29/3/99 for want of prosecution. The application is brought under Order 41 Rule 31 (1) of the Civil Procedure Rules and Section 3 A Civil Procedure Act and is dated 27/5/04. The application is supported by the affidavit of Ngeli Maithya. He contends that Judgment was delivered in this appeal on 13/11/98 in favour of the appellant/applicant and that on 26/5/99 the Respondent filed an application for review of the court’s judgment and that, that application was last in court on 11/4/02 and has never been set down for hearing since, and since no steps have been taken for over two years, it is only fair that it be dismissed. Mr Matata, counsel for the Respondent was served with the present application on 6/5/05 as confirmed by the Hearing Notice annexed to the Return of Service filed in court on 8/7/05. No reply had been filed by the Respondent despite the fact that the application has come up for hearing before. Mr Matata, did not attend the hearing.
From the record, the current applicant is the appellant whereas the Respondent is the Respondent in this appeal. On 11/11/98, this court allowed the appeal with costs to the appellant. It is as a result of that Judgment that the Respondent filed the application dated 29/3/99. It is obvious that the Respondent has lost interest in that application as he has done nothing towards its prosecution since April 2002, and he never opposed this application, filed any papers or made an appearance at the hearing of this application seeking the application’s dismissal. That application dated 26/5/99 has stalled the process of the applicant realizing the fruits of his appeal since 1999. There is no reason why it should continue to remain on record.
I notice that the applicant’s application is brought under Order 41 Rule 31 which deals with dismissal of appeals for want of prosecution. This application does not seek to have the appeal dismissed but an application. The court was not properly moved but even then the court finds that there is no reason why it should continue pending when the Respondent is not interested. In its own inherent jurisdiction the court order the application dated 29/3/99 hereby dismissed with costs to the applicant.
R.V. WENDOH
JUDGE Dated at Machakos this 17th day of August 2005
Read and delivered in the presence of
R.V. WENDOH
JUDGE