MWN (Suing on behalf of EN and TW-Minors) v Ndungu & another [2022] KEHC 11001 (KLR)

MWN (Suing on behalf of EN and TW-Minors) v Ndungu & another (Civil Appeal 52 of 2017) [2022] KEHC 11001 (KLR) (19 July 2022) (Ruling)

Neutral citation: [2022] KEHC 11001 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 52 of 2017

GWN Macharia, J

July 19, 2022

Between

MWN (Suing on behalf of EN and TW-Minors)

Appellant

and

Grace Wanja Ndungu

1st Respondent

Harun Simiyu

2nd Respondent

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha Children Case No. 2 of 2017 delivered by Hon. Z. Abdul, RM delivered on the 31st day of October, 2017)

Ruling

1. The ruling relates to a Notice to Show Cause (NTSC) why the Appeal should not be dismissed for want of prosecution.

Background 2. The Appellant instituted the present appeal vide a Memorandum of Appeal filed on the 14th November, 2017 subsequent to being aggrieved with the decision of the trial court. A Notice of Motion application dated…………. Seeking a stay of execution of the judgment/decree was filed on an even date. The said application was compromised by consent between parties on the 5th day of December, 2017.

3. The parties have since the date of entering into a consent failed to appear before court. Attempts by the Court’s process server to supply them with mention notices on various occasions have proven futile as deposed in the affidavits of service. It was in view of the foregoing that the matter was reserved for NTSC why the appeal ought not to be dismissed for want of prosecution.

Analysis and Determination 4. Order 42 Rule 35 (1) of the Civil Procedure Rules stipulates as follows:-“Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution”.

5. Further, Order 42 Rule 35 (2) of the Civil Procedure Rules stipulates as follows:-“If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal”

6. It is a requirement that once an appeal is lodged, it cannot be dismissed before directions are taken. However, in this particular instance, the Appellant has not demonstrated any interest in the appeal with the last time that the court was moved being on the 5th day of December, 2017.

7. The delay in taking directions is thus inordinate in the circumstances and would otherwise mean the Appellant has since lost interest in the said appeal. Efforts to trace the Appellant by the officers of the court have bore no fruit and the keeping the same alive for purposes of taking directions will be an exercise in futility.

Disposition 8. For all the foregoing reasons, the appeal is dismissed for want of prosecution with no orders as to costs.

9. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. G.W.NGENYE-MACHARIAJUDGEIn the presence of: