[2023] KEHC 22174 (KLR)
The court declined to dismiss the appeal for want of prosecution because no substantive motion for dismissal had been filed as required by procedural rules. The court emphasized that procedural rules are intended to facilitate justice rather than hinder it, and that the appeal had been admitted less than a year...
Source-derived case information.
- Citation
- [2023] KEHC 22174 (KLR)
- Parties
- Appellant: Daniel Odhiambo; Respondent: Elius Njeru Njoka; Respondent: Jane Njeri
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 73 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined.
- Judges
- F Wangari
- Legal Topics
- Dismissal for Want of Prosecution, Record of Appeal Filing, Procedural Rules, Notice of Motion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Daniel Odhiambo
Appellant
Elius Njeru Njoka
Respondent
Jane Njeri
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution in the absence of a substantive application.
- 2 Whether failure to file the Record of Appeal within the stipulated time warrants dismissal of the appeal.
Ratio Decidendi
The court declined to dismiss the appeal for want of prosecution because no substantive motion for dismissal had been filed as required by procedural rules. The court emphasized that procedural rules are intended to facilitate justice rather than hinder it, and that the appeal had been admitted less than a year prior, indicating no undue delay. Therefore, in the absence of a proper application and given the relatively short period since admission, dismissal was not warranted.
Court Disposition
Application for dismissal for want of prosecution declined.
Orders
- The appeal is not dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
Odhiambo v Njoka & another (Civil Appeal 73 of 2021) [2023] KEHC 22174 (KLR) (14 July 2023) (Ruling)
Neutral citation: [2023] KEHC 22174 (KLR)
Republic of Kenya
In the High Court at Mombasa
Civil Appeal 73 of 2021
F Wangari, J
July 14, 2023
Between
Daniel Odhiambo
Appellant
and
Elius Njeru Njoka
1st Respondent
Jane Njeri
2nd Respondent
Ruling
1. The appeal herein was admitted for hearing on 21st June 2022. The matter was slated for directions on 29th September 2021. The Record of Appeal was to be filed within 14 days from 21/6/2022. From the court record, there is no Record of Appeal filed.
2. The 1st respondent filed submissions that the appeal should be dismissed for want of prosecution. I note that no application has ever been fixed for hearing. There has been no substantive application filed.
3. Under Order 51 Rule 1 of the Civil Procedure Rules, applications ought to be made by notice of motion. The said provision provides as doth: -‘All applications to the court shall be by motion and shall be heard in open court unless the court directs the hearing to be conducted in chambers or unless the rules expressly provide.’
4. Procedural rules are the backbone of justice, as was reiterated by Maraga, J in Shashikant C. Patel v Oriental Commercial Bank [2005] eKLR in which he held inter alia;“…we should never lose sight of the fact that rules of procedure, though they may be followed are the handmaids of justice. They should not be given a pedantic interpretation which at the end of the day denies parties justice.”This was similar to the position adopted by Muriithi, J in Inland Beach Enterprises Ltd v Sammy Chege & 15 others [2012] eKLR where he held, inter alia:“…in my view, with the cardinal principle of procedure that rules are handmaids of justice not mistresses; the rules must serve the justice of the case as the court may determine in the circumstances of the proceedings.”
5. I therefore decline to dismiss the appeal without a substantive motion. In any case, the appeal was admitted less than one year ago. There has been no delay in prosecution.
DATED, SIGNED ANDDELIVERED VIRTUALLY AT MOMBASA THIS 14THDAY OF JULY 2023. ........................F. WANGARIJUDGEIn the presence of;N/A for the ApplicantN/A for the RespondentAbdullahi, Court Assistant