Ogeto v NCBA Bank Kenya PLC & another (Civil Appeal E027 of 2025) [2026] KEHC 13257 (KLR) (30 July 2026) (Ruling)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCA E027 OF 2025** **BETWEEN** **NATHAN OMBAYE OGETO.......................................................APPELLANT** **AND** **NCBA BANK KENYA PLC...............................................1ST RESPONDENT** **PAWABA AUCTIONEERS...............................................2ND RESPONDENT** **RULING** 1. The Respondents' Notice of Motion dated 30th June 2026 seeks an order that this appeal be dismissed for want of prosecution. The application is expressed to be brought under Order 42 Rule 35 of the Civil Procedure Rules and is supported by the affidavit of Simeon Onyiego Mong'are sworn on 30th June 2026. The Respondents contend that although the Appellant filed a Memorandum of Appeal on 23rd May 2025, no Record of Appeal has been filed and no meaningful step has been taken towards prosecuting the appeal. They urge the Court to find that the Appellant has lost interest in the appeal and to dismiss it with costs. 2. The record shows that the application was duly served upon the Appellant. Despite such service, the Appellant neither filed a replying affidavit nor grounds of opposition and did not otherwise oppose the application. Accordingly, the factual depositions contained in the supporting affidavit remain uncontroverted. 3. The issue for determination is whether the appeal is liable to dismissal for want of prosecution. 4. Order 42 Rule 35 of the Civil Procedure Rules provides: **"(1) Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.** **(2) If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal."** 1. The court record shows that the Memorandum of Appeal was filed on 23rd May 2025. The Respondents' uncontroverted evidence is that, to date, the Appellant has neither filed a Record of Appeal nor taken any step towards prosecuting the appeal. The appeal has therefore remained dormant for more than one year. 2. The Respondents seek dismissal of the appeal under Order 42 Rule 35. However, the record does not show that directions have been given under Order 42 Rule 13 so as to invoke Rule 35(1), nor has the appeal been listed before a Judge by the Registrar in accordance with Rule 35(2). Consequently, the Court is not persuaded that the appeal is ripe for dismissal under the procedure prescribed by Order 42 Rule 35. 3. Nevertheless, the Appellant's failure to take any step towards prosecuting the appeal for more than one year warrants the invocation of the procedure contemplated under Order 42 Rule 35(2). The Appellant should therefore be called upon to show cause why the appeal should not be dismissed for want of prosecution. 4. Accordingly, the Court declines to dismiss the appeal at this stage and instead directs that a Notice to Show Cause be issued to the Appellant pursuant to Order 42 Rule 35(2). 5. Consequently, the Court makes the following orders: 6. **The Deputy Registrar shall issue a Notice to Show Cause to the Appellant requiring him to show cause why this appeal should not be dismissed for want of prosecution pursuant to Order 42 Rule 35(2) of the Civil Procedure Rules.** 7. **The Notice to Show Cause shall be served upon the Appellant, for hearing of the Notice to Show Cause on 26th October 2026.** 8. **Costs of the Notice of Motion dated 30th June 2026 shall abide the outcome of the Notice to Show Cause proceedings.** **DELIVERED AT NYAMIRA THIS 30th DAY OF July 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Hilda** **For Appellant - N/A for Wesonga G O And Company Advocates** **For Respondents/Applicants - Mr. Mongare for Makori &Karimi Advocates**