Modern Coast Express Ltd v Yahya Sahib Ahmed, James Menza Tewa, Omar Ali Mohamed, David Kimeu Nduva & Attorney General [2018] KEHC 9022 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

MILIMANI LAW COURTS

CIVIL DIVISION

HIGH COURT CIVIL APPEAL NO. 98 OF 2014

MODERN COAST EXPRESS LTD............APPELLANT/RESPONDENT

VERSUS

YAHYA SAHIB AHMED........................1ST RESPONDENT/APPLICANT

JAMES MENZA TEWA.........................2ND RESPONDENT/APPLICANT

OMAR ALI MOHAMED.......................3RD RESPONDENT/APPLICANT

DAVID KIMEU NDUVA.........................4TH RESPONDENT/APPLICANT

ATTORNEY GENERAL........................5TH RESPONDENT/APPLICANT

RULING

1. The application dated 22nd March, 2017 principally seeks orders that:

“1. The memorandum of appeal filed by the Applicant on the 24th March, 2014 be struck out for want of prosecution.

2. That the Decretal amount deposited in court be released to the Respondents.

3. The cost of this application be awarded to the 1st, 2nd, 3rd and 4th Respondents.”

2. It is stated in the affidavit in support that since the filing of the appeal on 24th March, 2014, the Respondent has not taken any steps to prosecute the same.  It is further stated that the failure to prosecute the appeal is an abuse of the court process.

3. The application is not opposed. The Respondent did not file any papers in opposition to the application.  The Respondent was also not present during the hearing of the application though served.

4. I have considered the application.  The record confirms that the memorandum of Appeal was filed on 24th March, 2014. The Lower Court file was availed to this court.  No Record of Appeal has yet been filed.  Indeed no step has been taken herein by the Respondent since the filing of the appeal.  This amounts to abuse of the court process.

5. With the foregoing, I allow the application with costs to the Applicants.

Date, signed and delivered at Nairobi this 1st day of March, 2018

B. THURANIRA JADEN

JUDGE