[2016] KEHC 1191 (KLR)
The court found that the appellant had been invited as early as September 2013 to take directions under Order 42 Rule 13 but failed to do so. Despite the availability of proceedings and judgment, the appellant took no steps to compile the record of appeal or move the appeal forward for over two years. The delay was...
Source-derived case information.
- Citation
- [2016] KEHC 1191 (KLR)
- Parties
- Appellant: Stephen Nicholas Makwata; Respondent: Peter Wachira Ndirangu
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 549 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal and Dismiss Appeal
- Outcome
- appeal dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order 42 Rule 13, Order 42 Rule 35, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Nicholas Makwata
Appellant
Peter Wachira Ndirangu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal and Dismiss Appeal
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the appellant failed to comply with Order 42 Rule 13 of the Civil Procedure Rules despite being invited by the court.
- 3 Whether the stay of execution order was being abused by the appellant.
Ratio Decidendi
The court found that the appellant had been invited as early as September 2013 to take directions under Order 42 Rule 13 but failed to do so. Despite the availability of proceedings and judgment, the appellant took no steps to compile the record of appeal or move the appeal forward for over two years. The delay was deemed inordinate and inexcusable. The court also noted that the appeal had already been dismissed under Order 42 Rule 35(2) by a previous order, which had not been set aside. In light of these circumstances, the court concluded that the appellant had lost interest in prosecuting the appeal and was taking advantage of the stay order. Accordingly, the application to dismiss the...
Court Disposition
appeal dismissed with costs to the respondent
Orders
- The application by way of Notice of Motion dated 11th August, 2016 is allowed.
- The appeal is hereby dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 549 OF 2010
STEPHEN NICHOLAS MAKWATA ………… APPELLANT
VERSUS
PETER WACHIRA NDIRANGU …………….. RESPONDENT
RULING
The appellant herein was aggrieved by the Judgment of the lower court delivered on 12th November, 2010. As a result, a memorandum of appeal was filed on 8th December, 2010. Since then, no record of appeal has been filed and there is now before me an application by way of Notice of Motion dated 11th August, 2016 seeking orders that the memorandum of appeal dated 8th December, 2010 be struck out and the appeal be dismissed with costs.
The reasons for that step are that since the memorandum of appeal was filed no steps have been taken to prosecute the appeal. Further, the typed proceedings and judgment appealed against were made available to the appellant way back in the year 2013; and also the appellant has ignored the invitation by this court to comply with Order 42 Rule 13 of the Civil Procedure Rules which was communicated by a letter dated 24th September, 2013. It is further stated by the applicant that the appellant is enjoying a stay of execution order and has completely lost interest in the appeal.
The application is opposed, and there is a replying affidavit sworn by the advocate for the respondent in that regard. The affidavit sets out the efforts made to move the appeal forward and there are copies of letters written by the appellant’s advocates both to the lower court and Registrar of this court requesting for proceedings and judgment.
I observe that this point that there is another issue that has not been addressed by both learned counsel in this application. On 16th June, 2016 Njuguna J, dismissed this appeal under Order 42 Rule 35 (2) of the Civil Procedure Rules. That dismissal order is still in place. Assuming that the said order had been set aside (but I see no evidence to that effect) I have decided to address the present application on merit.
As early as September, 2013 the appellant’s advocate had been invited by the court to take directions under Order 42 Rule 13 of the Civil Procedure Rules. The last letter written by the appellant’s advocate relating to the lower court file and the proceedings therein was dated 24th January, 2014.
There is no evidence that from that particular time any steps had been taken to ensure that the proceedings were secured. It is over two years now and the appellant has not made any effort to find out whether or not the proceedings are ready, yet going by the record before me the proceedings are in the original court file. The delay in compiling the record of appeal with a view to prosecuting the same is inordinate and inexcusable. One would be tempted to agree that the appellant is taking advantage of the stay order issued in his favour.
Taking into consideration all the attendant circumstances I see no merit in the application. In the circumstances the application by way of Notice of Motion dated 11th August, 2016 is allowed. The appeal is hereby dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi this 28th Day of November, 2016.
A. MBOGHOLI MSAGHA
JUDGE