[2014] KEHC 7670 (KLR)
The court found that the appellant had failed to take essential preliminary steps required for the prosecution of an appeal, including filing a certified copy of the decree and the record of appeal, and seeking directions. The only action taken was an ineffective invitation to fix a hearing date. The court held that...
Source-derived case information.
- Citation
- [2014] KEHC 7670 (KLR)
- Parties
- Appellant: Trinity Clearing & Forwarding Company Ltd; Respondent: Iya Wario Roba
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 67 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Inherent Jurisdiction, Appeals Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Trinity Clearing & Forwarding Company Ltd
Appellant
Iya Wario Roba
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the court's inherent power can be invoked to dismiss the appeal where procedural rules do not strictly apply.
Ratio Decidendi
The court found that the appellant had failed to take essential preliminary steps required for the prosecution of an appeal, including filing a certified copy of the decree and the record of appeal, and seeking directions. The only action taken was an ineffective invitation to fix a hearing date. The court held that there was inordinate and unexplained delay in prosecuting the appeal, which prejudiced the respondent. As the procedural rules cited did not strictly apply, the court invoked its inherent power to dismiss the appeal for want of prosecution.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed with costs for want of prosecution under the inherent power of the court.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO. 67 OF 2012
TRINITY CLEARING & FORWARDING COMPANY LTD….………APPELLANT
VERSUS
IYA WARIO ROBA …………………………….........…………….RESPONDENT
R U L I N G
1. The Respondent in this appeal has sought by notice of motion dated 28th November 2012 dismissal of the appeal for want of prosecution. Though Order 42, rule 35 of the Civil Procedure Rules, 2010 (the Rules) provides for such dismissals, the application is not made under that rule. Order 2, rule 15 that has been cited has no application to appeal; it provides for striking out of pleadings.
2. But the Respondent has also invoked the inherent power of the court. Where the circumstances obtaining do not fit any of the two scenarios provided for in Order 42, rule 35, there cannot be any impediment to a respondent in an appeal invoking the inherent power of the court.
3. In the course of arguments the Appellant’s learned counsel conceded that since the filing of the memorandum of appeal on 28th February 2012, no certified copy of the decree appealed against has been filed as required by rule 2 of Order 42. He also conceded that no record of appeal has ever been prepared and filed and no directions under rule 11 of Order 42 have been sought. Without the taking of these preliminary steps, what purpose would the invitation dated 20th November 2012 to the Respondent’s advocate to take a hearing date fort the appeal have served? That letter appears to be the only action taken by the Appellant after filing the memorandum of appeal! No other action is disclosed by the replying affidavit.
4. I am satisfied that there has been inordinate delay in prosecuting this appeal. No credible explanation has been offered for that delay. The inordinate delay in prosecuting the appeal has prejudiced the Respondent.
5. In the circumstances I will allow the application. This appeal is hereby dismissed with costs for want of prosecution under the inherent power of the court. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF MARCH 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 10TH DAY OF MARCH 2014