The Application at bar is one dated 1st July 2010. The Applicant has moved the court under Order XLI Rule 31 of the Civil Procedure Rules but has not indicated whether it is under sub Rule (1) or (2). It was important for counsel to indicate which Rule he is relying on as each Rule provides for different circumstances.
I can only assume however that he is invoking sub-Rule (1) since the matter has been active until 17.02.2010 when the court marked it SOG. The matter had already been fixed for directions but the same could not be taken because the proceedings were ineligible. It was not the Appellants fault therefore that the Appeal could not be fixed for hearing earlier.
According to the Applicant however, as at the time this Application was filed, 3 months had passed since the “Appellants were ordered to prepare the record of Appeal”.
He has therefore moved the court to dismiss the entire Appeal.
The Respondent’s counsel has on the other hand asked the court to dismiss the application saying that directions as envisaged under Rule 8B have not been taken. The Appeal is not therefore ripe for dismissal. I have considered the Application, the supporting Affidavit and grounds of opposition.
Contrary to ground (b) on the Applicant’s Application, this court never ordered the Appellants to prepare the record of Appeal on 17.02.2010. All the court did was to direct the Deputy Registrar to supply copies of the freshly typed proceedings to counsel to enable them reconstitute the Record of Appeal. That was not a mandatory order directed at the Appellants whose non-compliance would attract this court’s sanctions against them.
I therefore dismiss the same with costs to the Respondents. I nonetheless order that the Appellants do prepare and serve the fresh Record of Appeal within 60 days from the date hereof failing which the Appeal will be dismissed.
JUDGE