[2010] KEHC 2372 (KLR)
The court found that the failure to progress the appeal was due to the deputy registrar's omission to comply with the mandatory requirement under section 79B of the Civil Procedure Act, which is to place the file before a judge for perusal and admission. Since this was an administrative lapse and not the fault of...
Source-derived case information.
- Citation
- [2010] KEHC 2372 (KLR)
- Parties
- Appellant: Nyamache Tea Factory Company Limited; Respondent: Convas Ontomwa Buge
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed; appeal admitted for hearing
- Judges
- DK Musinga
- Legal Topics
- Dismissal for Want of Prosecution, Admission of Appeal, Stay of Execution, Court Registry Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyamache Tea Factory Company Limited
Appellant
Convas Ontomwa Buge
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to the appellant's failure to take steps for hearing and disposal of the appeal.
- 2 Whether the stay of execution of the decree should be lifted and execution ordered.
- 3 Whether the appellant should be penalized for the deputy registrar's failure to comply with section 79B of the Civil Procedure Act.
Ratio Decidendi
The court found that the failure to progress the appeal was due to the deputy registrar's omission to comply with the mandatory requirement under section 79B of the Civil Procedure Act, which is to place the file before a judge for perusal and admission. Since this was an administrative lapse and not the fault of the appellant, it would be improper to penalize the appellant by dismissing the appeal or lifting the stay of execution. The respondent's application was therefore dismissed, the appeal was admitted for hearing, and directions were ordered to be taken within 30 days.
Court Disposition
application dismissed; appeal admitted for hearing
Orders
- The respondent's application for dismissal of the appeal for want of prosecution is dismissed.
- No order as to costs.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
OF KISII
Civil Appeal 59 of 2006
NYAMACHE TEA FACTORYCOMPANY LIMITED …………… APPELLANT
VERSUS
CONVAS ONTOMWA BUGE ………..…………. RESPONDENT
(Being an appeal from the judgment and decree of the CM’s court
at Kisii in CMCC No. 453 of 2005 – Mrs. Wewa, RM)
RULING
The memorandum of appeal herein was filed on 4th April 2006. At the time of filing the samethe appellant did not lodge the decree appealed against. The decree was filed on 27th April 2006. That notwithstanding, the deputy registrar did not comply with the provisions ofsection 79 Bof theCivil Procedure Actby placing the file before a judge for perusal to determine whether the appeal should be admitted or not.
That notwithstanding, on 19th August 2009 the respondent filed an application undersection 3Aof theCivil procedure ActandOrder L rule 1of theCivil Procedure Rulesseeking dismissal of the appeal for want of prosecution.In the alternative, the respondent urged the court to lift the stay of execution of the decree appealed from and order execution to issue forthwith.He accused the appellant of having failed to take any step for the hearing and final disposal of the appeal.
Considering that it is the deputy registrar who has failed to comply with a mandatory legal step in terms ofsection 79 Bof theCivil Procedure Act,it will be improper to penalize the appellant by granting the orders sought.I dismiss the respondent’s application with no orders as to costs.I hereby admit the appeal to hearing and further direct that the same be set down for directions within the next 30 days from the date hereof.
DATED, SIGNED AND DELIVERED AT KISII THIS 1STDAY OF MARCH, 2010.
D. MUSINGA
JUDGE.
1/3/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Oguttu for the Appellant
N/A for the Respondent
Court:Ruling delivered in open court on 1st March, 2010.
D. MUSINGA
JUDGE.