[2008] KEHC 2981 (KLR)
The court found that although the appellant had not taken steps to prosecute the appeal for over a year, it was not disputed that the appeal had previously been listed for hearing but could not proceed due to the court's congested schedule. The deposit of the decretal sum in a joint account was considered an...
Source-derived case information.
- Citation
- [2008] KEHC 2981 (KLR)
- Parties
- Appellant: South Nyanza Sugar Company Ltd; Respondent: Justus Amenya Oketch
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 69 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined; conditional order granted.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Company Ltd
Appellant
Justus Amenya Oketch
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI rule 31(1) of the Civil Procedure Rules.
- 2 Whether the appellant has demonstrated sufficient interest and diligence in prosecuting the appeal.
Ratio Decidendi
The court found that although the appellant had not taken steps to prosecute the appeal for over a year, it was not disputed that the appeal had previously been listed for hearing but could not proceed due to the court's congested schedule. The deposit of the decretal sum in a joint account was considered an indication of the appellant's intent to pursue the appeal, but not sufficient to preclude dismissal if prosecution was not pursued. Exercising judicial discretion, the court declined to dismiss the appeal immediately but ordered that it must be prosecuted within two months, failing which it would stand dismissed with costs. The appellant was also ordered to bear the costs of the...
Court Disposition
Application for dismissal for want of prosecution declined; conditional order granted.
Orders
- The appeal must be prosecuted within two months from the date of the ruling, failing which it will stand dismissed with costs.
- The appellant will bear the cost of this application.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Appeal 69 of 2004
SOUTH NYANZA SUGAR COMPANY LTD ……… APPELLANT
VERSUS
JUSTUS AMENYA OKETCH ……………………. RESPONDENT
RULING
The respondent filed an application pursuant to provisions of Order XL1 rule 31(1) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. He urged this court to dismiss this appeal herein for want of prosecution.
In an affidavit sworn by Albert Okumu Mudeyi, the respondent’s advocate, he deposed that for a period exceeding one year the appellant had failed and/or neglected to take any steps towards disposal of their appeal. In his view, the appellant had lost interest in the appeal.
The appellant filed grounds of objection and stated, inter alia, that it had been making effort to have the appeal heard and disposed of. It was stated that on 30th November 2006 the appeal was listed for hearing but it could not be reached and as a result it was stood over generally. It was further stated that the appellant had deposited in an interesting earning account in the joint names of the advocates for the parties the decretal sum as ordered by the trial court pending the hearing and determination of the appeal. That was an indication that the appellant was keen on pursuing the appeal.
While it is true that over the last one year or so the appellant has not taken any steps towards the disposal of the appeal, it is not in dispute that on 30th November 2006 the appeal came up for hearing but could not be reached because there were many other matters that were listed for hearing on that day.
Deposit of the decretal amount in court or in a bank is itself not a bar to the dismissal of any appeal where it is evident that the appellant is not keen on proceeding with the same. Under the provisions of Order XL1 rule 31(1) where the appeal has not been set down for hearing by the appellant within three months after the giving of directions, the respondent is at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. The Respondent chose the latter and he cannot be faulted for that. However, in exercise of this court’s discretion I will not dismiss the appeal but I order that the same be prosecuted within the next two months from date hereof, failing which it will stand dismissed with costs. The appellant will bear the cost of this application.
DATED, SIGNED and DELIVERED at KISII this 22ND day of APRIL, 2008.
D. MUSINGA
JUDGE.
Delivered in the open court in the presence of:
Mr. Nyambati for the appellant.
N/A for the respondent
D. MUSINGA
JUDGE