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ELCOthernot stated in judgment (appeal against judgment in Kajiado SPMCC No. 287 of 2005)· [2019] KEELC 2838 (KLR)

Godfrey Tauta Ole Lerinkon v Walter J. Mugangasia [2019] KEELC 2838 (KLR)

High Court (not expressly stated; delivery at Nairobi)
24 April 2019
KBK. Bor
532 words in judgment
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The bottom line

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A Kenyan court refused to dismiss a long-stalled appeal because no procedural directions had first been given, so the appeal stays alive.

What this practically means

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Executive summary

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This is a ruling on the Respondent's application dated 27/3/2018 seeking dismissal of an appeal for want of prosecution. The appeal is from Kajiado SPMCC No. 287 of 2005. The Respondent deponed that the court, on 22/9/2016, had directed the Appellant to file and serve submissions on his application dated 29/8/2016, that the Appellant never complied, and that the Appellant had taken no steps to fix the application dated 11/5/2016 or the appeal for hearing; the Respondent said it was through his advocate's efforts that the original subordinate court file reached the court, indicating the Appellant had lost interest. The Appellant's counsel did not attend the highlighting date on 12/3/2019, when only the Respondent's counsel made oral submissions, also noting that the Appellant's replying affidavit was not stamped as filed and was not in the court file. Considering Order 42 Rule 35 of the Civil Procedure Rules, the court applied Kirinyaga General Machinery v. Hezekiel Mureithi Ireri, where Mary Kasango J. held that directions under rule 8B must first have been given before a respondent may seek dismissal of an appeal for want of prosecution. The court found that the directions of 22/9/2016 related to the Appellant's application, and that no directions had been given on the appeal itself. It therefore was not satisfied that the application should be allowed, and the application dated 27/3/2018 was declined, leaving the appeal pending.

Key legal issues

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01

Whether an appeal can be dismissed for want of prosecution where no directions have been given

Holding

The application could not succeed because no directions had been given in the appeal, as required before invoking Order 42 rule 35

Reasoning

The court reviewed Order 42 Rule 35 of the Civil Procedure Rules and the decision in Kirinyaga General Machinery v. Hezekiel Mureithi Ireri, in which Mary Kasango J. interpreted the predecessor Order XLI Rule 31. The court found that directions are a precondition to a dismissal application. On the record, the court had last given directions on 22/9/2016 but had not given directions on the appeal itself, so the rule could not be invoked and the application was declined.

p. 2

Legal principles established

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  • Before a respondent may apply to dismiss an appeal for want of prosecution under Order 42 rule 35, directions ought to have been given under rule 8B

Court orders

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  1. 1.The application dated 27/3/2018 seeking dismissal of the appeal for want of prosecution is declined

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 35(1) (formerly Order XLI rule 31); rule 8B

Cases cited (1)

  • Kirinyaga General Machinery v. Hezekiel Mureithi Ireri
    HCCC No. 98 of 2008
On appeal from
Chief Magistrate's Court, Kajiado
SPMCC No. 287 of 2005
Jurisdiction invoked
Appellate jurisdiction under the Civil Procedure Act and Order 42 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Godfrey Tauta Ole Lerinkon v Walter J. Mugangasia [2019] KEELC 2838 (KLR)", Case Analysis (2019). not stated in judgment (appeal against judgment in Kajiado SPMCC No. 287 of 2005). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2838/eng@2019-04-24

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.