KIRAN T CHAVDA V JOHN WAINAINA MWATI [2012] KEHC 4478 (KLR)

Editorial Summary

1. Civil Appeal

2. Civil Practice and Procedure

3. Subject of subordinate court case

TORT

3. 1           Running down cause

3. 2           Material loss damage

3. 3           Appellant/original defendant appeals against

liability and quantum from judgment of

28th December 2006 on 6th February 2007.

3. 4           Application for stay of execution pending

hearing of appeal granted on 19th April 2007

on condition sum of Ksh. 66,461/- is deposited

in an interest earning account.

3. 5           There is no action on the file for 4 years.

4. Application dated 10th October 2011

4. 1           Seeking orders to dismiss appeal for

want of prosecution.

4. 2           That for 4 years no action has been taken

on the file in reply by appellant.

4. 3           Several letters written to court seeking

the proceedings and copies of the typed judgments.

4. 4           Several letters displayed and annexed to

affidavit being 5th February 2007

23rd January 2008

19th December 2011

and 16th January 2011 (read 2012)

notifying of warrants of attachment being issued.

5. Held:

i)             Order 42 r 35(2) Civil Procedure Rules is not

available to the appellant.

ii)            Application dismissed.

iii)           Compliance of Order 42 r 13 and Section 79B

Civil Procedure Act have not been made.

6. Case Law:

7. Advocates:

i)  M Odawa  instructed by Pramod Patel & Co Advocates for

applicant

ii) Mulandi instructed by Njeri Mburu & Co Advocates for

respondent

REPUBLIC OF KENYA

IN THE HIGH COURT

AT NAIROBI

MILIMANI LAW COURTS

Civil Appeal 64 of 2009

KIRAN T CHAVDA ………….…….……………...… APPELLANT

VERSUS

JOHN WAINAINA MWATI ….………………….... RESPONDENT

(Being an appeal from the Judgment of Hon. D. Toigat (Senior Resident Magistrate) in Case No. 8344 of 2002 dated 28th december 2006 at Nairobi)

R U L I N G

Application for dismiss appeal

For want of prosecution

Under Order 42 r 35(2) Civil Procedure Rules

I.INTRODUCTION

1. Judgment was delivered against the appellant/original defendant

Kiran T Chavda, in the subordinate court case at the Milimani Commercial Court on the 28th December 2006. Being dissatisfied with the decision that was a tort case covering material loss damage, he filed appeal on 6th February 2007.

2. An application for stay of execution was also granted by the High Court on 19th April 2007 on condition that a sum of Ksh. 66,461/- is deposited to court (Waweru J).

3. For 4 years, no action had been taken on the file. The respondent original plaintiff filed an application dated 10th October 2011 seeking to have the appeal dismissed for want of prosecution.

IIAPPLICATION 10TH OCTOBER 2011

4. The application had been brought under Order 42 r 35(2) Civil Procedure Rules. The arguments being that for 4 years that the appeal had been filed, no action had been taken on the said file.

5. The appellant filed a replying affidavit and respondent by stating that he had been asking for the proceedings and judgment but has received no response to the matter. Letters to the courts dated:

5th February 2007

23rd January 2008

19th December 2011

6. A warrant of attachment was conferred by the court to have been issued by a letter of 16th January 2011, despite there being a stay of execution that the application be dismissed.

7. Under Order 42 r 35(2) is not available to the applicant. This is because only the deputy registrar is permitted to issue notice upon the parties that he intends to place the file before the Hon. Judge for dismissal due to want of prosecution. Proof that the memorandum of appeal had been served upon the respondent and a lapse of 3 years passed must first be established before dismissal orders are made.

8. The applicant can only come to court after the appeal has been admitted and directions given, to either set the appeal down for hearing or after three months to apply for the appeal to be dismissed.

9. I note with regret the delay by the subordinate court to avail the lower court file for this to occur. It is hoped that this will be done without further delay.

10. The application is dismissed with costs to the appellant/respondent/original defendant.

DATED THIS 26TH DAY OF MARCH 2012 AT NAIROBI

M.A. ANG’AWA

JUDGE

Advocates:

i)  M Odawa  instructed by Pramod Patel & Co Advocates for

applicant

ii) Mulandi instructed by Njeri Mburu & Co Advocates for

respondent