Bobinson Kariuki Gathara v Benjamin Kariuki Gathara [2022] KEHC 1395 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NYERI

P & A APPEAL NO.15 OF 2019

BOBINSON KARIUKI GATHARA...........APPELLANT/RESPONDENT

VERSUS

BENJAMIN KARIUKI GATHARA..........RESPONDENT/APPLICANT

RULING

1. The applicant has filed an application dated 18th June 2021 seeking for orders that the appeal herein be dismissed for want of prosecution. The application is supported by the affidavit of the applicant where in he deposes that the appeal was filed on the 11th of March 2020 and record of appeal served on the respondent on the 13th of March 2020. That one year and three months has lapsed since then and the respondent has not taken any action to prosecute the appeal. That the respondent has lost interest in the appeal and the continued delay in prosecuting the appeal is highly prejudicial to the applicant whose health is failing due to old age.

2. The application was opposed by the appellant/respondent on the grounds that there is no truth in the assertion that the respondent has lost interest in the appeal. That all what remains in the appeal is for the court to allocate a hearing date.That since the advent of the corona epidemic, efforts to have the appeal set down for hearing have been futile. That the respondent would appreciate if the appeal is set down for hearing.

3. The application is made under Order 42 Rule 35 of the Civil Procedure Rules and Rules 49 and 73 of the Probate & Administration Rules. Rule 73 of the P & A Rules grants this court inherent power to make such orders as may be necessary for the ends of justice.

4. I have considered the application and the objection thereto. The P & A Rules do not seem to have provisions for dismissal of suits for want of prosecution similar to the one provided in civil suits under Order 17 rule 2 of the Civil Procedure Rules which grants the court power to dismiss a suit for want of prosecution where there has been no step taken in the matter for a period of one year. Order 17 of the Civil Procedure Rules is not one of the Orders applicable in succession matters by gist of the provisions of Rule 63 of the P & A Rules. A probate court is thereby not bound by the one-year rule provided under the CPR. That world explain why the instant application is made under the inherent jurisdiction of the court under Rule 73 of the P & A Rules.

5. Though the P & A Rules do not provide the time lapse by which a suit may be dismissed for want of prosecution, I am of the considered view that the court ought to be guided by the principle of reasonableness when determining the issue. The court can thus dismiss the suit for want of prosecution where there is inordinate delay.

6. I have however perused the court file in this matter and noted that the appeal was admitted for hearing on 25th June 2021. This was a week or so after the applicant filed the instant application. It means that the application was filed before the appeal was admitted for hearing. An appeal cannot be dismissed for want of prosecution before it is admitted for hearing. It was not the fault of the respondent that the appeal took a long time to be admitted to hearing. That fault can only be placed at the foot of the court.

7. The upshot is that there is no merit in the application dated 18th June 2021. The same is dismissed with costs to the respondent.

DELIVERED, DATED AND SIGNED AT NYERI THIS 11TH DAY OF MARCH, 2022.

J.N. NJAGI

JUDGE