https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6897

Stellar Builders Ltd v Light Pack Services Ltd (Civil Appeal E092 of 2022) [2026] KEHC 6897 (KLR) (Commercial and Tax) (14 May 2026) (Ruling) Neutral citation: [2026] KEHC 6897 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Commercial and Tax Civil Appeal E092 of 2022 F Gikonyo, J May 14, 2026 Between Stellar Builders Ltd Appellant and Light Pack Services Ltd Respondent Ruling 1.The respondent/ applicant filed the chamber summons dated April 14, 2025, mainly under Order 42 Rule 2 and 35 of the Civil Procedure Rules. 2.The applicant seeks that: -1.the appeal be dismissed for want of prosecution.2.upon such dismissal, the funds held in NCBA Bank Kenya PLC A/C No. 937 105 0018, in the joint names of MKK Advocates and Oange & Associates Advocates pursuant to the Court’s order of 26th March 2024, be released to the respondent/applicant’s advocates, M/s Oange & Associates Advocates.3.appellant does bear the costs of the appeal and this application. 3.The application is supported by the affidavit sworn by the applicant’s managing director, James Okoth on April 14, 2025. 4.The application is opposed by the appellant/ respondent through the replying affidavit sworn by the appellant’s internal quantity surveyor, Elijah Mathenge on June 4, 2025. 5.The application was canvassed through written submissions dated September 9, 2025 and September 24, 2025. Applicant’s case 6.The applicant highlighted that the appeal was filed on May 24, 2023 and faulted the respondent for not taking steps to prosecute appeal. It also highlighted that the appellant applied for and was granted a conditional stay of execution. The terms were that the respondent would deposit pay the undisputed sum of Kshs. 2,186,611.72/- and deposit the balance of Kshs. 4,907,842/- in a joint interest-earning account held by the parties’ advocates within 30 days. 7.The applicant contended that the delay in prosecuting the appeal is deliberate, inordinate and prejudicial to it as it is entitled to the fruits of the judgment. 8.The applicant relied on: -1.South Nyanza Sugar Company Limited v Samuel Omoke Obage [2009] KEHC 3099 (KLR)2.Pyrethrum Board of Kenya v Wokabi Wangombe [2014] KEHC 36623.Hitesh Bikhula Khetia v Fatuma Jama Mohamed [2020] KEHC 2820 (KLR)4.Mburugu & another v Caleb [2023] KEHC 25470 (KLR) Response 9.The respondent argued that the application is not merited as the applicant has not met the threshold for the dismissal of the appeal for want of prosecution. 10.The respondent contended that the application is premature and the court has not yet given directions on the hearing of the appeal under Order 42 Rule 13 of the Civil Procedure Rules and the lower court file has not yet been made available. 11.The respondent expounded that the delay in filing of the record of appeal is not deliberate as its efforts to obtain certified copies of typed proceedings from the trial court’s registry have been futile. That the certified copies of typed proceedings were issued on May 15, 2025 are incomplete as they only contain proceedings from November 2, 2022 and April 26, 2023. That proceedings from 2020 to April 26, 2023 which are necessary for the complete adjudication of the appeal, are missing. 12.The respondent urged the court to take judicial notice of the huge backlog of typed proceedings in the lower court. It argued that the delay is not so unreasonable and inordinate as the prejudice caused by the delay can be compensated by an award of damages and costs. 13.The respondent further submitted that the prejudice that it would suffer if the appeal were dismissed now would be greater as it has a constitutional right to appeal and it already complied with the conditional stay orders. 14.The respondent relied on: -1.Nzioka v Muthiani [2022] eKLR2.Stephen Ndungu Kamande & another v Stephen Muriuki George & another [2020] KEHC 2327 (KLR)3.Jurgen Paul Flach v Jane Akoth Flacj [2014] KEHC 5269 (KLR)4.Cecilia Karuru Ngayu v Barclays Bank of Kenya & another [2016] eKLR Analysis and determination 15.Is there merit in the request to dismiss the appeal for want of prosecution? 16.Order 42 Rule 35 of the Civil Procedure Rules, provides: -“35.Dismissal for want of prosecution [Order 42, rule 35](1)Unless within three months after the giving of directions under rule 13 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. (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.” 17.It has been acknowledged by the applicant that, a certified decree has not been filed, the court has not admitted the appeal under section 79 G and that the Deputy Registrar has not issued notices under Rule 12 or listed the matter for directions under Rule 12. 18.The applicant acknowledged that under the above provision, the only instance where it could move the court to dismiss the appeal for want of prosecution is where the appellant has failed to set down the appeal for hearing within three months after directions under Rule 13 have been issued. That in other instances it is the DR who would list the appeal for dismissal where the appellant has not fixed it for hearing within 1 year from the date of service of the memorandum of appeal. 19.However, the applicant contended that regardless of the foregoing, the court has jurisdiction to dismiss the appeal for want of prosecution even where admission of appeal and directions have not been undertaken. It relied on South Nyanza Sugar Company Limited v Samuel Omoke Obage [2009] KEHC 3099 (KLR) 20.The applicant submitted that the appellant’s right to appeal is not absolute. It also pointed out that the respondent is enjoying the conditional orders of stay without prosecuting the appeal. That justice demands that the appeal be heard and determined expeditiously. 21.The applicant asserted that the part payment and the deposit of the balance into the joint interest account does not prejudice the respondent as the part payment was an admitted amount and the deposited balance was on condition of stay. 22.The respondent admitted that there has been delay. However, the respondent contended that the delay is not deliberate on its part as it has applied for certified typed proceedings but there have been delays on the part of the trial court. It also complained that it was supplied with part of the proceedings with a particular period missing. 23.The respondent exhibited a copy of a letter dated May 16, 2023 to the executive officer of the Milimani Commercial Courts requesting supply of certified copies of the proceedings, judgment and decree given. 24.The respondent also exhibited proceedings spanning from 2.11.22 to 26.4.23. 25.In view of the evidence, I am not persuaded that the delay in prosecuting the appeal is solely attributable to the respondent. Dismissal of this appeal in the circumstances would render great prejudice to the respondent’s right of appeal. A proportioned balance is to save it from the hangman’s noose but with directions that would expedite its hearing. Disposal 26.The application dated April 14, 2025 is dismissed. 27.Costs to be in the cause. 28.I direct that the lower court file together with complete typed and certified proceedings to be forwarded to this court within 14 days. The appellant to be supplied with complete typed and certified proceedings within14 days. And the appeal be listed for directions before me on a date to be agreed. DATED, SIGNED AND DELIVERED AT NAIROBI THROUGH MICROSOFT TEAMS ONLINE APPLICATION THIS 14TH DAY OF MAY, 2026-----------------------F. GIKONYO MJUDGEIn the presence of: -Oange for ApplicantMwangi for Kimani for RespondentCA – Ivan/Aggrey