[2005] KEHC 2185 (KLR)
The court held that the application for dismissal of the appeal for want of prosecution was premature because directions had not been taken as required by Order XLI Rule 31(i) of the Civil Procedure Rules. The rule stipulates that only after directions are given and three months have passed without the appellant...
Source-derived case information.
- Citation
- [2005] KEHC 2185 (KLR)
- Parties
- Appellant: Teresia Njoki Njeru; Respondent: Trufosa Njeru
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 8 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs
- Judges
- I Lenaola
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Directions, Order Xli Rule 31, Record of Appeal, Adjournment, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresia Njoki Njeru
Appellant
Trufosa Njeru
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal can be dismissed for want of prosecution before directions have been taken under Order XLI Rule 31(i).
- 2 Whether the respondent's application for dismissal is premature in the absence of directions.
Ratio Decidendi
The court held that the application for dismissal of the appeal for want of prosecution was premature because directions had not been taken as required by Order XLI Rule 31(i) of the Civil Procedure Rules. The rule stipulates that only after directions are given and three months have passed without the appellant setting the appeal down for hearing can the respondent apply for dismissal. Since no directions had been taken in this case, the respondent's application could not be entertained. The court therefore dismissed the application with costs to the appellant.
Court Disposition
application dismissed with costs
Orders
- The application dated 19.10.2004 is dismissed with costs.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU CIVIL APPEAL NO. 8 OF 2001
TERESIA NJOKI NJERU …………………….. APPELLANT VERSUS TRUFOSA NJERU …………………………….. RESPONDENT
RULING
1. The Respondent by his Chamber Summons dated 19. 10. 2004 seeks Orders that the Appeal herein be dismissed under Order XLI Rule 31(i) for want of Prosecution. The reason is that since 4. 12. 2003 when the matter was adjourned, no action has been taken by the Appellant to prepare the record of Appeal as ordered on that day nor set it down for hearing.
2. The only ground raised in opposition is that the Application is premature as Order XLI Rule 31(i) allows for dismissal of Appeals for want of Prosecution only after and not before directions are taken. In this case, I am told that no directions were taken and therefore the Appeal could not be listed for hearing in any event.
3. Order XLI Rule 31(i) provides as follows-
“Unless within three months after giving of directions under Rule 8B 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 for Summons for dismissal for want of Prosecution.”
Rule 8B(i) provides thus;
“On notice to the parties delivered not less than twenty-one days after the date of service of the Memorandum of Appeal the Registrar shall list the Appeal for giving of directions by a Judge in Chambers.”
4. Read together and looking at the record in this matter, directions must be taken and only three months after may an Application under Order XLI Rule 31(i) lie. In this case, I agree with Counsel for the Respondent that it is not a fit case in its circumstances for this Court to invoke the powers to dismiss for want of Prosecution.
5. The Application dated 19. 10. 2004 must and is hereby dismissed with costs. Orders accordingly.
Read in Open Court this 23rd day of February 2005
I. LENAOLA
JUDGE
In the presence of;
Mr. Okwaro for the Applicant
Mr Mogusu for the Respondent
I. LENAOLA
JUDGE