[2015] KEHC 6796 (KLR)
The court held that the application for dismissal of the appeal for want of prosecution was misconceived because it was brought under Order 17 of the Civil Procedure Rules, which applies to suits and not to appeals. The proper procedure for dismissal of appeals for want of prosecution is set out in Order 42 rule 35....
Source-derived case information.
- Citation
- [2015] KEHC 6796 (KLR)
- Parties
- Appellant: P W M; Respondent: R M M
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 87 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- DN Musyoka
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Procedure, Application of Civil Procedure Rules
- 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
P W M
Appellant
R M M
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether an appeal can be dismissed for want of prosecution under Order 17 of the Civil Procedure Rules.
- 2 Whether the correct procedure for dismissal of appeals for want of prosecution is under Order 42 rule 35 of the Civil Procedure Rules.
Ratio Decidendi
The court held that the application for dismissal of the appeal for want of prosecution was misconceived because it was brought under Order 17 of the Civil Procedure Rules, which applies to suits and not to appeals. The proper procedure for dismissal of appeals for want of prosecution is set out in Order 42 rule 35. Since the applicant relied on the wrong provision, the application could not be granted. The court therefore dismissed the application and awarded costs to the respondent.
Court Disposition
application dismissed
Orders
- The application dated 4th April 2014 is dismissed.
- The respondent shall have costs of the application.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO: 87 OF 2012
P W M …………………..……APPELLANT
VERSUS
R M M……………..………RESPONDENT
RULING
The application dated 4th April 2014 seeks dismissal of the suit herein for want of prosecution.
It is premised on Order 17 of the Civil Procedure Rules which provides for prosecution of suits.
The cause herein is not a suit but an appeal. Appeals are governed by Order 42 of the Civil Procedure Rules. Dismissal of appeals for want of prosecution is provided for under Order 42 rule 35 and not Order 17.
Order 42 rule 35 states as follows:-
“Rule 35(1). Unless within three months after giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant 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.”
5. The application dated 4th April 2014 is not for granting. The appeal herein cannot be dismissed on the basis of the provisions cited in the application. I do here hereby dismiss the application, the respondent shall have costs thereof.
DATED, SIGNED and DELIVERED at NAIROBI this 30th DAY OF January 2015.
W. MUSYOKA
JUDGE