[2011] KEHC 3982 (KLR)
The court found that directions for the prosecution of the appeal were given on 10th February, 2009, requiring the appeal to be prosecuted within 90 days. The appellants failed to take any steps to set down the appeal for hearing for over seven months, and by the time of the ruling, two years had elapsed since...
Source-derived case information.
- Citation
- [2011] KEHC 3982 (KLR)
- Parties
- Applicant: Winny Chepkurui; Appellant: Abercrombie & Kent Ltd; Appellant: Stanley K. Rono
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 165 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; appeal dismissed for want of prosecution with costs to the applicant
- Judges
- SP Ouko
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Directions and Timelines
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Winny Chepkurui
Applicant
Abercrombie & Kent Ltd
Appellant
Stanley K. Rono
Appellant
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 failure by the appellants to set it down for hearing within the prescribed period after directions were given.
Ratio Decidendi
The court found that directions for the prosecution of the appeal were given on 10th February, 2009, requiring the appeal to be prosecuted within 90 days. The appellants failed to take any steps to set down the appeal for hearing for over seven months, and by the time of the ruling, two years had elapsed since directions were given. The court held that the requirements of the relevant procedural rules were satisfied, and the delay was inordinate and unexplained. Therefore, the appeal was dismissed for want of prosecution, with costs awarded to the applicant.
Court Disposition
application allowed; appeal dismissed for want of prosecution with costs to the applicant
Orders
- The application is allowed with costs.
- The appeal is dismissed for want of prosecution with costs to the applicant.
Full Case Text
Judgment text and source record
18 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL 165 OF 2007
WINNY CHEPKURUI…….....…………....APPLICANT/RESPONDENT
VERSUS
ABERCROMBIE & KENT LTD...…..1STAPPELLANT/RESPONDENT
STANLEYK. RONO…………...….2ND APPELLANT/RESPONDENT
RULING
The application before me is seeking that this appeal be dismissed for want of prosecution for the reasons that :
i)directions were taken on 10th February, 2009 to the effect that the appeal be prosecuted within 90 days
ii)more than seven (7) months had passed since the directions were taken
iii)the delay has caused the appellant undue anxiety
The application was argued exparte after the respondent failed to reply to it or attend the court when it was argued. The application is brought under Order 41 rule 32 of the revoked Civil Procedure Rules which is on all forms with the present Order 42 rule 35 of the 2010 rules to the effect that, unless within 3 months after the giving of directions the appeal is not set down for hearing by the appellants, the respondent is at liberty to either set it down for hearing or apply for its dismissal for want of prosecution.
Directions having been given on 10th February, 2009 that the appeal be prosecuted within 90 days, the provisions or Order 41 rule 31 aforesaid were satisfied by the time this application was brought on 21st October, 2009 as nearly seven (7) months had lapsed.
Indeed today it is two years since the directions were taken and yet the appellants have taken no steps to prosecute the appeal. This application is allowed with costs and the appeal herein dismissed also with costs to the applicant.
Dated, Delivered and Signed at Nakuru this 11th day of February, 2011
W. OUKO
JUDGE