[2024] KEHC 14523 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for over a year since its filing, despite being granted a stay of execution and being served with the application and notices to attend court. The court determined that this demonstrated a lack of interest in pursuing the appeal...
Source-derived case information.
- Citation
- [2024] KEHC 14523 (KLR)
- Parties
- Appellant: Peter Kibui Thairu; Respondent: Sammy Wainaina; Respondent: Hilary Kemei; Respondent: Joseph Ogola Ezra
- Court
- High Court
- Court Station
- High Court at Kiambu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E202 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DO Chepkwony
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kibui Thairu
Appellant
Sammy Wainaina
Respondent
Hilary Kemei
Respondent
Joseph Ogola Ezra
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the respondent is entitled to costs of the application.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for over a year since its filing, despite being granted a stay of execution and being served with the application and notices to attend court. The court determined that this demonstrated a lack of interest in pursuing the appeal and that it would be just and prudent to dismiss the appeal to prevent further clogging of the court system and to allow the respondent to enjoy the fruits of the judgment. The court relied on Order 42 Rule 35(2) of the Civil Procedure Rules, which empowers the court to dismiss an appeal for want of prosecution, and exercised its discretion accordingly.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules.
- Costs of the application are awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
Thairu v Wainaina & 2 others (Civil Appeal E202 of 2021) [2024] KEHC 14523 (KLR) (6 November 2024) (Ruling)
Neutral citation: [2024] KEHC 14523 (KLR)
Republic of Kenya
In the High Court at Kiambu
Civil Appeal E202 of 2021
DO Chepkwony, J
November 6, 2024
Between
Peter Kibui Thairu
Plaintiff
and
Sammy Wainaina
1st Defendant
Hilary Kemei
2nd Defendant
Joseph Ogola Ezra
3rd Defendant
Ruling
1. This is a ruling in respect of a Notice of Motion application dated 11th May, 2023, where the Applicant, who is the Respondent in this appeal has sought for orders that:a.This appeal be dismissed for want of prosecution.b.The costs of the application be awarded to the Applicant.
2. The application is based on the ground set out on its face and in the Supporting Affidavit sworn by Wilfred Orenge Stephen on even date.
3. According to the Applicant, through her advocate, Mr. Wilfred Orenge Stephen, it has been more than one year since the appeal was filed in court on 18th day of January, 2022 and the Appellant/Respondent has taken any step to follow up and prosecute the appeal or to take any directions to proceed with the hearing of the appeal. This, the Applicant (Respondent) finds is an unfair practise only meant to prevent her from enjoying the fruits of the Judgment, hence has been prejudiced by this delay.
4. I have perused the court record and noted that despite being served with the application and notices to attend court, there has been no response by the Applicant since 15th March, 2022 when parties were granted a stay of execution pending the determination of the appeal.
5. In view of this, the court finds that it is quite evident that the Appellant lost interest in having the appeal prosecuted and it will only be prudent to unclog the court system of backlog and allow the Respondent enjoy the fruits of its Judgment delivered on 26th October, 2022 in Ruiru CMCC No.E228 of 2021, by Honourable Priscah Nyokabi.
6. Consequently, this appeal be and is hereby dismissed for want of prosecution as provided for under Order 42 Rule 35(2) of the Civil Procedure Rules with costs to the Respondent.It is so ordered.
RULING DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 6TH DAY OF NOVEMBER, 2024. D. O. CHEPKWONYJUDGEIn the presence of:-No appearance for and by the AppellantMr. Orenge counsel for Responden/ApplicantCourt Assistant - Martin