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ELCPartially AllowedHigh Court Civil Appeal arising from Memorandum of Appeal dated 23rd September 2018 (from CMCC No. 389 of 2018)· [2020] KEELC 3132 (KLR)

Juliet Kwamboka Ongwae t/a Kahawa Kulture v Mocha Place Limited [2020] KEELC 3132 (KLR)

High Court of Kenya
28 February 2020
JOJ.M ONYANGO
614 words in judgment
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The bottom line

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A Kenyan High Court dismissed an appeal that sat idle for over a year, confirming that appeals not set down for hearing within twelve months risk automatic dismissal.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th October 2019, the applicant, who was the respondent in the appeal, sought dismissal of the appellant's appeal (Memorandum of Appeal dated 23rd September 2018, filed 24th September 2018) for want of prosecution under Order 42 rule 35(2) of the Civil Procedure Rules, sections 1A, 1B and 3A of the Civil Procedure Act and constitutional articles. The appeal challenged a ruling of S. K Onjoro SRM in CMCC No. 389 of 2018 dismissing the appellant's application for injunction. The applicant deponed that the appellant's application for stay of execution was dismissed on 16th November 2018, after which the appellant vacated the premises and handed over vacant possession, yet took no further steps - neither filing a certified copy of the order appealed from nor obtaining certified proceedings to enable preparation of the Record of Appeal. The appellant opposed through a Ground of Opposition, asserting the matter had been compromised: she had vacated the premises and paid all rent following an informal agreement, and sought that the matter be marked as settled with no order as to costs. The singular issue was whether the appeal should be dismissed for want of prosecution. The court held it was not in dispute that the appellant no longer wished to pursue the appeal, noting she should have formally withdrawn it. Applying Order 42 Rule 35(2) and the Kerugoya authority of Morris Njagi & Another v Mary Wanjiku Kiura, the court found merit in the application, dismissed the appeal for want of prosecution, and ordered the Appellant to bear the costs of the application. Judgment delivered at Kisii on 28th February 2020 by J.M Onyango J.

Key legal issues

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01

Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules

Holding

The appeal was dismissed for want of prosecution because the appellant had not set it down for hearing within one year and had taken no steps to prepare the record of appeal

Reasoning

The applicant deponed that since the dismissal of the stay application the appellant had neither filed a certified copy of the order appealed from nor obtained certified proceedings to enable filing of the Record of Appeal. The court noted it was not in dispute that the appellant was no longer interested in pursuing the appeal, the suit premises having been handed over and the matter compromised, and that the proper course would have been a formal withdrawal. Applying Order 42 Rule 35(2), the court found merit in the application.

p. 2

Legal principles established

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  • Where an appeal has not been set down for hearing within one year after service of the Memorandum of Appeal, the registrar shall list it before a judge in chambers for dismissal under Order 42 Rule 35(2)

Court orders

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  1. 1.The appeal filed by the Appellant vide the Memorandum of Appeal dated 23rd September 2018 and filed on 24th September 2018 is dismissed for want of prosecution
  2. 2.The costs of the application shall be borne by the Appellant

Authorities

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Legislation

  • Civil Procedure RulesOrder 50 rule 1
  • Civil Procedure RulesOrder 42 rule 35(2)
  • Civil Procedure Actsections 1A, 1B and 3A
  • Constitution of Kenya, 2010Articles 27, 47, 48 and 159(2)(b) and (d)

Cases cited (1)

  • Morris Njagi & Another v Mary Wanjiku Kiura
    Kerugoya High Court Civil Appeal No. 17 of 2015
On appeal from
Chief Magistrate's Court (CMCC)
CMCC No. 389 of 2018
Jurisdiction invoked
Order 42 rule 35(2) of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act; Articles 27, 47, 48 and 159(2)(b) and (d) of the Constitution, 2010

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, "Juliet Kwamboka Ongwae t/a Kahawa Kulture v Mocha Place Limited [2020] KEELC 3132 (KLR)", Case Analysis (2020). High Court Civil Appeal arising from Memorandum of Appeal dated 23rd September 2018 (from CMCC No. 389 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3132/eng@2020-02-28

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