[2011] KEHC 1167 (KLR)
The court found that the appellant, after filing the appeal and obtaining a stay, failed to take any steps to prosecute the appeal or respond to the application for dismissal. The appellant's counsel received the hearing notice under protest but did not attend court or send a representative to explain their...
Source-derived case information.
- Citation
- [2011] KEHC 1167 (KLR)
- Parties
- Appellant: Robert Ruhiu Chira; Respondent: Peter Ngure Chira; Respondent: Geoffrey Ngure Chira; Respondent: Stephen Mimi Chira
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 874 of 2007
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed with costs
- Judges
- DK Maraga
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Application of Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Robert Ruhiu Chira
Appellant
Peter Ngure Chira
Respondent
Geoffrey Ngure Chira
Respondent
Stephen Mimi Chira
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution was proper.
- 2 Whether the application to set aside the dismissal and reinstate the appeal should be granted.
- 3 Whether the application by the respondents was brought under the correct provision of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant, after filing the appeal and obtaining a stay, failed to take any steps to prosecute the appeal or respond to the application for dismissal. The appellant's counsel received the hearing notice under protest but did not attend court or send a representative to explain their position. The court held that the fact that the respondents' application was brought under the wrong provision of the Civil Procedure Rules did not assist the appellant, who had been clearly indolent. The court concluded that there was no merit in the appeal and dismissed it with costs.
Court Disposition
appeal dismissed with costs
Orders
- The appeal is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 874 OF 2007
ROBERT RUHIU CHIRA……….......................……APPELLANT/APPLICANT
VERSUS
PETER NGURE CHIRA…………..…........................…..…….1ST RESPONDENT
GEOFFREY NGURE CHIRA……............................…..………2ND RESPONDENT
STEPHEN MIMI CHIRA………….....................……………3RD RESPONDENT
JUDGMENT
On 16th June 2010, pursuant to the Respondents’ application, this appeal was dismissed for want of prosecution. On learning of the dismissal, the Appellant filed an application on 28th June 2010 to set aside that dismissal order and reinstate the appeal for hearing. Counsel for the Appellant submitted that the Respondents’ application had been brought under Order 16 Rule 6of theCivil Procedure Ruleswhich relates to suit and not appeals. They urged that the application should have been brought under Order 41 Rule 31of the Civil Procedure Rules.
Counsel also urged that they failed to attend court on the hearing of the Respondents’ application because the date was not convenient to them and that they had received the hearing notice under protest. In the circumstances they urged me to allow this appeal.
On their part counsel for the Respondent submitted that their clients’ application had not been opposed as the Appellant, though served did not file any replying affidavit.
Having considered these submissions I find no merit in this appeal. After filing the appeal and obtaining an order of stay, the Appellant went to sleep and did not bother to fix the appeal for hearing. He was not even piqued by the application which sought to dismiss it for want of prosecution. When served with a hearing notice counsel received it under protest and failed to attend court or send somebody to hold brief and say why he received the hearing notice under protest. That the Respondents’ application was brought under wrong provisions of the law does not help the appellant who has clearly been indolent in this matter. In the circumstances I dismiss this appeal with costs.
DATED and delivered this 26th day of July 2011.
D.K. MARAGA
JUDGE