[2016] KEHC 3168 (KLR)

[2016] KEHC 3168 (KLR)

The court found that although the applicant cited the wrong procedural rule, this was a technical error that should not defeat the application in light of Article 159(2)(d) of the Constitution, which mandates that justice be administered without undue regard to technicalities. The appellants had failed to take any steps to prosecute the appeal for nearly four years, including not listing the appeal for directions as required by Order 42 Rule 13(1) of the Civil Procedure Rules. However, the court recognized that the power to dismiss for want of prosecution is discretionary and should be exercised judicially. Given the circumstances, the court declined to dismiss the appeal outright but...

Citation
[2016] KEHC 3168 (KLR)
Parties
Appellant: Stephen Mburu Kimani; Appellant: Matheka Fauliner; Respondent: Everline Njoki Muchoki
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
15 September 2016
Case Number
Civil Case 365 of 2012
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Outcome
Application dismissed. Appeal to be prosecuted within ninety days or stand dismissed. No order as to costs.
Judges
LM Njuguna
Legal Topics
Dismissal for Want of Prosecution, Appeals Process, Inordinate Delay, Judicial Discretion
Source Language
English
Civil Procedure Dismissal for Want of Prosecution Appeals Process Inordinate Delay Judicial Discretion

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2
Sign in to unlock

Parties

Stephen Mburu Kimani

Appellant

Matheka Fauliner

Appellant

Everline Njoki Muchoki

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution

Legal Issues

  1. 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellants.
  2. 2 Whether the erroneous citation of the procedural rule by the applicant renders the application fatally defective.
  3. 3 Whether the court should exercise its discretion to dismiss the appeal or allow its prosecution within a specified period.

Ratio Decidendi

The court found that although the applicant cited the wrong procedural rule, this was a technical error that should not defeat the application in light of Article 159(2)(d) of the Constitution, which mandates that justice be administered without undue regard to technicalities. The appellants had failed to take any steps to prosecute the appeal for nearly four years, including not listing the appeal for directions as required by Order 42 Rule 13(1) of the Civil Procedure Rules. However, the court recognized that the power to dismiss for want of prosecution is discretionary and should be exercised judicially. Given the circumstances, the court declined to dismiss the appeal outright but...

Court Disposition

Application dismissed. Appeal to be prosecuted within ninety days or stand dismissed. No order as to costs.

Orders

  • The application dated 2nd February, 2016 is dismissed.
  • The appeal shall be prosecuted within ninety (90) days failing which it shall stand dismissed.