[2013] KEHC 3316 (KLR)
The court found that the appellant failed to comply with the conditions for stay of execution, resulting in the respondent recovering the decretal sum. Since then, the appellant had taken no steps to prosecute the appeal for over three years, and failed to comply with Order 42 Rule 11 of the Civil Procedure Rules....
Source-derived case information.
- Citation
- [2013] KEHC 3316 (KLR)
- Parties
- Appellant: Rachael Koros; Respondent: Judy Nyawira Ruire (Suing as the Legal Representative of the estate of Ndemi Mugane)
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 115 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
- Outcome
- appeal struck out with costs
- Judges
- HI Ong'udi
- Legal Topics
- Abuse of Process, Delay in Prosecution, Striking Out Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rachael Koros
Appellant
Judy Nyawira Ruire (Suing as the Legal Representative of the estate of Ndemi Mugane)
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution and abuse of court process.
- 2 Whether the appellant lost interest in prosecuting the appeal after recovery of the decretal sum.
- 3 Whether failure to comply with conditions for stay of execution justifies striking out the appeal.
Ratio Decidendi
The court found that the appellant failed to comply with the conditions for stay of execution, resulting in the respondent recovering the decretal sum. Since then, the appellant had taken no steps to prosecute the appeal for over three years, and failed to comply with Order 42 Rule 11 of the Civil Procedure Rules. The absence of any response to the application further indicated lack of interest in pursuing the appeal. The court held that the continued pendency of the appeal amounted to an abuse of the court process and that the appeal should be struck out with costs to the respondent.
Court Disposition
appeal struck out with costs
Orders
- The appeal is struck out with costs to the respondent/applicant.
- The respondent/applicant is awarded the costs of the application.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
High Court at Embu
Civil Appeal 115 of 2010 [if gte mso 9]><xml>
14. 00
</xml><![endif]
RACHAEL KOROS..............................................................APPELLANT/APPLICANT
VERSUS
JUDY NYAWIRA RUIRE(Suing as the Legal Representative of the estate of
NDEMI MUGANE)................................................................................... DEFENDANT
(Being an Appeal from the Judgment of E.M. NYAGA Principal Magistrate Kerugoya
in CMCC 88of 2011 on 218th December 2009)
R U L I N G
This is the Notice of Motion dated 6th February 2013 and brought under Section 1B and 3A of the Civil Procedure Act, Order 51 Rule 1 of the Civil Procedure Rules for the striking out of the appeal as being an abuse of the due process.
The Respondent/Applicant cites 4 grounds to support her application.
The appeal herein was solely calculated to frustrate the recovery of the decretal sum.
The appellant has lost interest in prosecuting the appeal since the recovery of the decretal sum.
The appellant has not taken any steps to prepare, prosecute the appeal for the last 27 months.
It is an abuse of the court process for a party to file an appeal merely to forestall recovery of a lawful money decree.
The application is also supported by the affidavit of Mr. Peterson Kinyua Kiama the Respondent's advocate. In it he has expounded on the grounds. Of great importance are paragraph 4 – 6 of the affidavit where he states
4. That the respondent was granted a stay of execution on condition that the decretal sum is deposited in court within 30 days.
5. That the respondent did not comply with the condition for stay of execution where upon he proceeded with execution and recovered the decretal sum on the 8/4/2011.
6. That since the payment of the decratal sum on the 8/4/2011, the respondent has not take any steps to prosecute this appeal.
This application was served on the appellant/respondent's counsel but there has been no response to the said application. The application is therefore not opposed. Since the recovery of the decretal sum on 8/4/2011 after the appellant/respondent failed to comply with condition of the stay of execution, it is clear that the appellant/respondent has lost interest in the appeal.
The appellant/respondent has failed to comply with Order 42 Rule 11 of the Civil Procedure Rules for directions on admission or otherwise yet the appeal was filed on 8/1/2010. This is a period of over 3 years.
I find the application to have merit and I strike out the appeal with costs. The respondent/applicant also gets the costs of the application.
DELIVERED, SIGNED AND DATED AT EMBU THIS 3RD OF MAY 2013.
H.I. ONG'UDI
JUDGE
In the presence of:-
N/A for or by parties
Njue CC