[2012] KEHC 5095 (KLR)
The court found that directions under Order 42 rules (2)-(4) Civil Procedure Rules had not been given, as the appeal had never been admitted or rejected for hearing. The deputy registrar had not issued the required notice for directions, and the file had not been placed before the judge for admission or rejection...
Source-derived case information.
- Citation
- [2012] KEHC 5095 (KLR)
- Parties
- Appellant: Richard Kioko Kiundi; Respondent: Kenya Pipeline Co. Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 63 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Summary Judgment, Appeal Admission, Directions by Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Richard Kioko Kiundi
Appellant
Kenya Pipeline Co. Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 rule 35(1) Civil Procedure Rules.
- 2 Whether directions under Order 42 rules (2)-(4) Civil Procedure Rules had been given to trigger the respondent's application for dismissal.
- 3 Whether the appellant's explanation for inaction was sufficient to prevent dismissal of the appeal.
Ratio Decidendi
The court found that directions under Order 42 rules (2)-(4) Civil Procedure Rules had not been given, as the appeal had never been admitted or rejected for hearing. The deputy registrar had not issued the required notice for directions, and the file had not been placed before the judge for admission or rejection due to outstanding queries. As such, the precondition for invoking Order 42 rule 35(1) had not been met, and the respondent's application to dismiss the appeal for want of prosecution was premature and not available under the law. The appellant's explanation for inaction was accepted, and the application was dismissed with costs to the respondent in the application.
Court Disposition
application dismissed
Orders
- The application dated 6th June 2011 to dismiss the appeal for want of prosecution is dismissed with costs to the respondent in the application.
- The deputy registrar is directed to address the queries raised by the Hon. Judge and thereafter place the file before the judge for admission or rejection.
Full Case Text
Judgment text and source record
63 paragraphs
Editorial Summary
1. Civil Appeal
2. Civil Procedure and Practice
3. Subject of Subordinate Court Case
CONTRACT
3. 1 Moneys due and owing.
3. 2 Respondent/defendant files
Counter-claim.
3. 3 Summary judgment entered against
plaintiffs. 16th January 2008
3. 4 Plaintiff appeals
14th February 2008
3. 5 Orders 16th March 2010 matter for
directions. Okwengu J.
3. 6 To await notices by deputy registrar.
4. Application 6th June 2011
By respondent original defendant
i) Appeal be dismissed..
5. In Reply:
i) Awaiting notices from the
deputy registrar
6. Held:
i) Appeal never admitted
ii) May explain deputy registrar not
issuing notice for directions
iii) Explanation by appellant accepted.
iv) Application dismissed.
7. Case Law:
8. Advocates:
i)N.K. Nguovi instructed by M/s Kingoo Wanjau & Co Advocates for appellant/applicant original plaintiff
ii) J. Ochola holding brief for C. Ngare instructed by M/s G.N. Gichuhi & Co Advocates for respondent / original defendant
REPUBLIC OF KENYA
IN THE HIGH COURT AT NAIROBI
MILIMANI LAW COURTS
CIVIL APPEAL NO. 63 OF 2008
RICHARD KIOKO KIUNDI ............................... APPELLANT/ ORIGINAL PLAINTIFF
VERSUS
KENYA PIPELINE CO. LTD ….…….... RESPONDENTS/ORIGINAL DEFENDANTS
(Being an appeal from the Judgment of Hon. C. W Githua Esq, Senior Principal Magistrate on 16th January 2008 in Civil Case No. 6187 of 2005 at Milimani Commercial Courts at Nairobi)
RULING
(Application To Dismiss suit for Want of Prosecution
Order 42 r 35 (1) Civil Procedure Rules
I.BACKGROUND
1. Summary judgment was entered by the trial court at Nairobi Milimani Commercial Courts on a counter-claim on the 16th January 2008.
2. The plaintiff being dissatisfied with the decision appealed to this High Court on the 14th February 2008. The parties appeared before Okwengu J on 16th March 2010 who then made orders that parties do proceed for directions. That the parties were to avail notices to issue to them by the Deputy Registrar.
3. No action on the file was taken and by an application dated 6th June 2011, the respondent/original defendant made application to this court to have the appeal dismissed.
IIAPPLICATION 6TH JUNE 2011
4. The application dated 6th June 2011 was brought under Section 3A, 1A of the Civil Procedure Act and Order 42 r 35(1) of the Civil Procedure Rules and all enabling provision of the law.
5. It was an application that sought not only the dismissal of the suit but the release of security amounting to Ksh. 500,000/= deposited to court pursuant to orders made on the 20th February 2008.
6. In reply, the respondent’s explanation was that he was to receive a notice from the deputy registrar as ordered by court. No notice was issued for directions, except that one was attached to the application by the applicant of 23rd November 2009 which had never come to their attention. He prayed that the appeal be not dismissed.
IIIFINDINGS
7. The application has been brought under Order 42 r 35(1) Civil Procedure Rules that reads:-
“Unless within 3 months after the giving of directions … 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.”
8. This means, that once directions under Order 42 r(2)-(4) Civil Procedure Rules have been given, the appellant should within 3 months set the matter down for hearing. If he or she fails to do so, then the respondent is at liberty to do so or apply for the dismissal of the matter on appeal.
9. In this file, the appeal had never been admitted or rejected for hearing. The deputy registrar did place the file before the Hon. Judge (Sitati J) but the said file was not admitted or otherwise on further queries raised by the judge before this was done. It therefore means that no directions under Order 42 r (2)-(4) Civil Procedure Rules had been taken. The effect of this being that the Order 42 r (2)-(4) Civil Procedure Rules is not available to the applicant respondent. Only the deputy registrar can move the file under Order 42 r (2)-(4) Civil Procedure Rules for dismissal for want of prosecution.
10. To this end, this application dated 6th June 2011 must fail. It is dismissed with costs to the respondent in the application.
11. The deputy registrar to ensure the queries raised by the Hon. Judge is dealt with and thereafter the file be placed before Hon. Judge for admission/rejection or otherwise.
DATED THIS 1ST DAY OF FEBRUARY 2012 AT NAIROBI
M.A. ANG’AWA
JUDGE
Advocates:
i)N.K. Nguovi instructed by M/s Kingoo Wanjau & Co Advocates for appellant/applicant original plaintiff
ii) J. Ochola holding brief for C. Ngare instructed by M/s G.N. Gichuhi & Co Advocates for respondent/ original defendant