[2011] KEHC 1641 (KLR)
The court held that the application to dismiss the appeal for want of prosecution was premature and not in compliance with the applicable former Civil Procedure Rules. The appeal had not yet been admitted, and the correct procedural steps had not been followed. The court further clarified that Section 3A of the...
Source-derived case information.
- Citation
- [2011] KEHC 1641 (KLR)
- Parties
- Appellant: Nyoike Ng'ang'a; Appellant: Murenge Ng'ang'a; Respondent: Gaturu Nga'ng'a
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 325 of 2009
- Procedural Posture
- Civil Appeal / Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Land Disputes, Application of Former Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyoike Ng'ang'a
Appellant
Murenge Ng'ang'a
Appellant
Gaturu Nga'ng'a
Respondent
Procedural Posture
Civil Appeal / Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under the applicable Civil Procedure Rules.
- 2 Whether Section 3A of the Civil Procedure Act is the appropriate provision for dismissal in this context.
Ratio Decidendi
The court held that the application to dismiss the appeal for want of prosecution was premature and not in compliance with the applicable former Civil Procedure Rules. The appeal had not yet been admitted, and the correct procedural steps had not been followed. The court further clarified that Section 3A of the Civil Procedure Act was not the appropriate legal basis for such an application in this context. As a result, the application was rejected, and no orders as to costs were made due to the respondent's absence.
Court Disposition
application dismissed
Orders
- The application dated 6 January 2011 to dismiss the appeal for want of prosecution is rejected.
- There will be no orders as to costs as the respondent was absent.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT OF KENYA
NAIROBI
CIVIL APPEAL NO. 325 OF 2009
(Being an appeal from the Award of the Provincial Land Disputes Tribunal at Nyeri, delivered on 28th May 2009
in Claim No. Kiambu West 2/2009)
NYOIKE NG’ANG’A............................................................................................................APPELLANT
MURENGE NG’ANG’A.......................................................................................................APPELLANT
VERSUS
GATURU NGA’NG’A.....................................................................................................RESPONDENT
RULING NO. 1
(Application dated 6 January 2011 for orders to dismiss appeal for want of prosecution)
I.Background
1. Not being satisfied with the decision of the Provincial Land Disputes Appeals Tribunal, the appellant herein appealed to this High Court on 28 May 2009.
2. From 28 May 2009 to 21 September 2010, the court took no action in this matter; except on 26 July 2010, the records of appeals from Nyeri High Court was called for.Another notice was issued on the said 21 September 2010 requesting the appellant to file record of appeal.
3. No action was taken and as a result the respondent/appellant files this application dated 6 January 2011 to seek for orders that the appeal be dismissed for want of prosecution.
4. The provision of the Law relied on being Section 3A of the civil Procedure Act and all other enabling provisions of the Law.
II.APPLICATION
5. Should this appeal be dismissed?
6. The appeal was filed in 2009 before the rules under the Civil Procedure rules were amended. I therefore require to make my decision under the former rules and not the current Rules.
7. Section 3A of the Civil Procedure Rules is not appropriate in this matter.
8. The court procedure is for the Deputy Registrar to issue a notice to both parties, after the file has been placed before the Hon. Judge for admission, and where admission of the appeal to court has been made and directions taken, then, within 3 months the appellant is to set down the matter for hearing.
9. Where only the memorandum of appeal has been served, then, for 1 year, no action to have the appeal heard is made, then, an application by the respondent may be made to have the appeal dismissed.
10. I would find that the court position is that the appeal is to first be admitted. Where it is only the Memorandum of Appeal that has been filed and served, then an application after one year applying for the dismissal of the appeal may be made.
11. The difference of the Civil 2010 rules to the former rules appears to be that the role of the Deputy Registrar is limited.
12. The application herein is hereby rejected as not being in compliance with the rules.
13. There will be no orders as to costs as the respondent was absent.
RULING DATED THIS 11TH DAY OF MAY 2011 AT NAIROBI
M. ANG’AWA
JUDGE
Advocates
i.L. M. Njogu instructed by Nyoro Njogu & Co. Advocates for the Respondent-present
ii.S. Morara Omariba instructed by G. Morara Omariba & Co. Advocates for the Applicant- present