[2020] KEHC 795 (KLR)

[2020] KEHC 795 (KLR)

The court found that under Order 42 rule 35 of the Civil Procedure Rules, an application for dismissal of an appeal for want of prosecution can only be entertained if directions have been given. In this case, no directions had been issued, and the respondent had not requested the registrar to list the appeal for...

Source-derived case information.

Citation
[2020] KEHC 795 (KLR)
Parties
Appellant: Pyramid Construction Limited; Respondent: Chuode General Construction Limited
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
9 December 2020
Case Number
Civil Appeal 50 of 2015
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Outcome
application dismissed with costs to the respondent
Judges
AM Githinji
Legal Topics
Dismissal for Want of Prosecution, Appeal Admission, Directions Under Order 42, Delay in Prosecution, Costs Award
Source Language
english
Civil Procedure Dismissal for Want of Prosecution Appeal Admission Directions Under Order 42 Delay in Prosecution Costs Award

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 6 Party arguments 2
Sign in to unlock

Parties

Pyramid Construction Limited

Appellant

Chuode General Construction Limited

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal should be dismissed for want of prosecution under Order 42 rule 35 of the Civil Procedure Rules.
  2. 2 Whether directions had been given to enable the respondent to apply for dismissal of the appeal.
  3. 3 Whether the delay in prosecuting the appeal was justified or prejudicial to the respondent.

Ratio Decidendi

The court found that under Order 42 rule 35 of the Civil Procedure Rules, an application for dismissal of an appeal for want of prosecution can only be entertained if directions have been given. In this case, no directions had been issued, and the respondent had not requested the registrar to list the appeal for dismissal. The delay in prosecuting the appeal was attributable to the lack of typed proceedings, which was not the appellant's fault. The court emphasized that dismissal for want of prosecution is a drastic measure to be used sparingly and only where justice demands. Since the procedural requirements for dismissal had not been met, the application lacked merit and was dismissed...

Court Disposition

application dismissed with costs to the respondent

Orders

  • The application to dismiss the appeal for want of prosecution is dismissed.
  • Costs of the application are awarded to the respondent.