[2020] KEHC 716 (KLR)
The court found that the Appellant had not taken any steps to prosecute the appeal since filing the memorandum of appeal on 27th April 2018, nor had he filed a record of appeal or responded to the Notice to Show Cause. The stay application was dismissed in September 2019, and no further action was taken by the...
Source-derived case information.
- Citation
- [2020] KEHC 716 (KLR)
- Parties
- Appellant: Said Adam Kazungu; Respondent: Kibokoni Properties Ltd
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DB Nyakundi
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Failure to Prosecute, Order 42 Civil Procedure Rules
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Adam Kazungu
Appellant
Kibokoni Properties Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 rule 35(2) of the Civil Procedure Rules.
- 2 Whether the Appellant has taken any steps to prosecute the appeal since filing.
Ratio Decidendi
The court found that the Appellant had not taken any steps to prosecute the appeal since filing the memorandum of appeal on 27th April 2018, nor had he filed a record of appeal or responded to the Notice to Show Cause. The stay application was dismissed in September 2019, and no further action was taken by the Appellant. The Deputy Registrar acted in accordance with Order 42 rule 35(2) of the Civil Procedure Rules by issuing the Notice to Show Cause. The Appellant's failure to respond or show interest in prosecuting the appeal demonstrated abandonment of the appeal. Consequently, the court exercised its discretion to dismiss the appeal for want of prosecution, ensuring that litigation is...
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- No orders as to costs.
Full Case Text
Judgment text and source record
30 paragraphs
THE REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL APPEAL NO. 24 OF 2018
CONSTITUTIONAL PETITION NO E2 OF 2020
SAID ADAM KAZUNGU........................APPELLANT
VERSUS
KIBOKONI PROPERTIES LTD.........RESPONDENT
Coram: Hon. Justice R Nyakundi
Mr. K’opere for the Respondent
Appellant in Person
RULING
The ruling is relation to a Notice to Show Cause (NTSC) date 4th May 2020 issued by the Deputy Registrar why the appeal should not be dismissed for want of prosecution under Order 42 rule 53(2) of the Civil Procedure Rules.
When the matter came up for hearing on 21st May 2020, only counsel for the Respondent was on record. The court ordered that parties should file submissions.
Submissions
In his submissions dated 8th June 2020 Mr. K’opere advocate for the Respondent submitted that since the appeal was filed on 27th April 2018 and the stay application dismissed in October 2019, the Appellant had taken no steps to file a record of appeal or prosecute the appeal for a period of over 2 years until the court issued a NTSC dated 4th May 2020.
Counsel submitted that despite filing the Memorandum of Appeal and the stay application dismissed, the Appellant lost interest in prosecution of the appeal and urged the court to dismiss the appeal to allow the Respondent Decree Holder to reap the fruits of its judgment.
The Appellant failed to put in his submissions.
DETERMINATION
Order 42 rule 35 of the CPR provides for dismissal for want of prosecution and states that: -
(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.
This court in Rosavie (Epz) Limited v Stanlex Mbithi James [2015] eKLRstated that: -
“The law on dismissal of an appeal for want of prosecution is contained in Order 42 Rule 35 of the Civil Procedure Rules. The rule contemplates two scenarios when an appeal can be dismissed. One is where three (3) months after issuance of directions no steps have been taken to prosecute the appeal i.e. Order 42 Rule 35 (1), and the second is where no steps have been taken to prosecute the appeal within one year after the service of the memorandum of appeal i.e. Order 42 (35) (2). Under the first scenario, it is the Respondent to move the Court whilst under the second scenario, the action is by the registrar.”
The appeal before this court was lodged on 27th April 2018 more than two years ago. Thereafter the Appellant filed an application seeking to stay the orders of the lower court on 26th October 2018 and which was dismissed on 25th September 2019. The Appellant has never filed a record of appeal and has never followed up on his appeal.
The Deputy Registrar initiated the dismissal in accordance to the law. Despite notice been served to his advocate on the NTSC, the Appellant has failed to respond. It is apparent that the Appellant has no interest in pursuing his appeal and has abandoned. In this regard, the appeal stand dismissed.
It is so ordered.
Ruling delivered, dated and signed at Malindi this 18th day of December, 2020.
..........................
R. NYAKUNDI
JUDGE