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ELCDismissedNot stated in judgment· [2021] KEELC 153 (KLR)

Hurlingham Grocers Limited v APA Insurance Limited [2021] KEELC 153 (KLR)

High Court of Kenya
20 December 2021
EWE. K. Wabwoto
1,787 words in judgment
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The bottom line

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Kenya's High Court ruled an appeal can't be dismissed for delay before directions are issued, but gave the appellant 60 days to file.

What this practically means

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Executive summary

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The Respondent filed a Notice of Motion dated 1st September 2021 seeking dismissal of the Appellant's appeal for want of prosecution, supported by an affidavit of Kennedy Ochieng Advocate. The Respondent argued that the Appellant had filed the appeal pursuant to leave granted by Lady Justice Kossy Bor on 20th July 2020 on condition of paying rent arrears of Ksh 5,653,892.36, had failed to comply, had abandoned the premises, and had caused inordinate delay amounting to abuse of process. The Appellant, through a Replying Affidavit sworn by Firozali Kassam Jaffer, opposed the application on the ground that it was brought under the wrong provision - Order 17 rather than Order 42 of the Civil Procedure Rules - and that the appeal had not yet been admitted nor directions given. Justice E. K. Wabwoto examined the framework for dismissing appeals for want of prosecution under Section 79B of the Civil Procedure Act and Order 42 Rules 11, 12, 13 and 35, holding that directions must first have been given before such a dismissal can occur. Since no directions had been given and no notice under Order 42 Rule 12 had issued, the appeal could not be dismissed. The court further reasoned that dismissal would shut the Appellant out of court contrary to Article 50(1) of the Constitution. Relying on Njai Stephen v Christine Khatiala Andika and Kirinyaga General Machinery v Hezekiah Mureithi Ireri, the court dismissed the application with costs in the cause, but directed the Appellant to file and serve the Record of Appeal within sixty days, failing which the appeal would stand automatically dismissed.

Key legal issues

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01

Whether an appeal can be dismissed for want of prosecution before directions under Order 42 Rule 13 have been given

Holding

It cannot; dismissal under Order 42 Rule 35 presupposes that directions have been given, and no such directions had been issued in this appeal

Reasoning

Order 42 Rule 35(1) applies only where directions under Rule 13 were given and the appellant failed to set the appeal down within three months; Rule 35(2) requires the Registrar's notice under Rule 12. The court found no indication that directions had been given nor any notice from the Registrar. Dismissal at that stage would also offend the appellant's right of access to a fair hearing under Article 50(1). The application was brought under the wrong provision (Order 17) in any event.

p. 3

Legal principles established

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  • An appeal cannot be dismissed for want of prosecution under Order 42 Rule 35 before directions have been given under Order 42 Rule 13

Court orders

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  1. 1.The Respondent's Notice of Motion dated 1st September 2021 is not merited and is hereby dismissed
  2. 2.Costs shall be in the cause
  3. 3.The Appellant is directed to file and serve its Record of Appeal within sixty (60) days from the date of the Ruling, failure of which the Appeal shall stand automatically dismissed
  4. 4.Either party is at liberty to apply

Authorities

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Legislation

  • Civil Procedure ActSection 79B
  • Civil Procedure Rules, 2010Order 42 Rules 11, 12, 13, 35(1), 35(2); Order 17
  • Constitution of Kenya, 2010Article 50(1)

Cases cited (2)

  • Njai Stephen vs Christine Khatiala Andika
    [2019] eKLR
  • Kirinyaga General Machinery vs Hezekiah Mureithi Ireri
    [2007] eKLR
On appeal from
Subordinate court (leave to appeal granted by Hon. Lady Justice Kossy Bor in related proceedings)
Jurisdiction invoked
Appellate jurisdiction of the High Court under Section 79B of 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Hurlingham Grocers Limited v APA Insurance Limited [2021] KEELC 153 (KLR)", Case Analysis (2021). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/153/eng@2021-12-20

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