( Being an appeal from the Judgment delivered on 26th
November, 2021 at the Chief Magistrate's Court at Nairobi by Honourable D.O Mbeja.)
Introduction
1. This appeal arises from the Judgment of the Chief Magistrate’s Court at Milimani ( Hon. D. O. Mbeja ) delivered on 26 th November 2021 in MCCC No. E4711 of 2020. The trial court held the appellants liable at 100% and awarded the respondent general damages of Kshs.2,000,000/=, special damages of Kshs. 3,550/=, costs of the suit plus interest at court rate.
The Appeal
2. Aggrieved, the appellants filed a Memorandum of Appeal dated 16 th December 2023 raising several grounds of appeal, which can be summarized as follows, the trial court erred:
a. In fact and in law in finding that the respondent had proved the injuries pleaded on a balance of probability.
b. In fact and in law in finding that the respondent was entitled to decretal award of Kshs. 2,583,499/=.
c. In fact and law in finding that the respondent was entitled to damages that were too high in view of the injuries pleaded.
d. In fact and law in failing to consider the appellant’s application dated 9 th July 2021 before rendering the judgment.
e. In fact and law in failing to consider conventional awards in cases of similar nature.
3. The appellants consequently urge this Court to allow the appeal and set aside the trial court’s Judgment and substitute therefor its own assessment of damages.
4. The appeal was subsequently listed for directions. The appellants consistently failed to file supplementary record of appeal and/or written submissions as directed by the court on 27 th January 2026. The matter subsequently came up before me on 19 th May 2026 when the appellants and their advocate on record failed to attend court in spite of notice. On this date, the court directed fresh service upon the appellants and fixed the matter for Notice to Show Cause why the appeal cannot be dismissed for want of prosecution on 29 th May 2026.
5. In spite of service, the appellants and their counsel did not attend court on 29 th May 2026. The respondent’s counsel urged the court to dismiss the appeal for want of prosecution.
6. I have carefully perused the court record and noted that ever since the appeal was filed about December 2023, the appellants have done little to ensure progress and/or determination of this appeal. This is what culminated in the issuance of the notice to show cause.
7. Order 42 Rule 20 of the Civil Procedure Rules 2010 provides as follows:
“(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 16, the court may make an order that the appeal be dismissed.
(2) Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.”
8. In this case, the appellants have consistently failed to attend court on the dates set down for hearing and/or directions in the matter. The appellants have similarly failed to comply with court directions especially with regard to filing of written submissions. This conduct clearly demonstrates that the appellants have lost interest in prosecuting the appeal. Consequently, I do hereby invoke the provisions of Order 42 Rules 20 and 35 of the Civil Procedure Rules and dismiss this appeal with costs for want of prosecution.
It is so ordered.
Dated, signed and delivered at Nairobi this 17 th day of September 2026.
November, 2021 at the Chief Magistrate's Court at Nairobi by Honourable D.O Mbeja.)
Introduction
1. This appeal arises from the Judgment of the Chief Magistrate’s Court at Milimani ( Hon. D. O. Mbeja ) delivered on 26 th November 2021 in MCCC No. E4711 of 2020. The trial court held the appellants liable at 100% and awarded the respondent general damages of Kshs.2,000,000/=, special damages of Kshs. 3,550/=, costs of the suit plus interest at court rate.
The Appeal
2. Aggrieved, the appellants filed a Memorandum of Appeal dated 16 th December 2023 raising several grounds of appeal, which can be summarized as follows, the trial court erred:
a. In fact and in law in finding that the respondent had proved the injuries pleaded on a balance of probability.
b. In fact and in law in finding that the respondent was entitled to decretal award of Kshs. 2,583,499/=.
c. In fact and law in finding that the respondent was entitled to damages that were too high in view of the injuries pleaded.
d. In fact and law in failing to consider the appellant’s application dated 9 th July 2021 before rendering the judgment.
e. In fact and law in failing to consider conventional awards in cases of similar nature.
3. The appellants consequently urge this Court to allow the appeal and set aside the trial court’s Judgment and substitute therefor its own assessment of damages.
4. The appeal was subsequently listed for directions. The appellants consistently failed to file supplementary record of appeal and/or written submissions as directed by the court on 27 th January 2026. The matter subsequently came up before me on 19 th May 2026 when the appellants and their advocate on record failed to attend court in spite of notice. On this date, the court directed fresh service upon the appellants and fixed the matter for Notice to Show Cause why the appeal cannot be dismissed for want of prosecution on 29 th May 2026.
5. In spite of service, the appellants and their counsel did not attend court on 29 th May 2026. The respondent’s counsel urged the court to dismiss the appeal for want of prosecution.
6. I have carefully perused the court record and noted that ever since the appeal was filed about December 2023, the appellants have done little to ensure progress and/or determination of this appeal. This is what culminated in the issuance of the notice to show cause.
7. Order 42 Rule 20 of the Civil Procedure Rules 2010 provides as follows:
“(1) Where on the day fixed, or on any other day to which the hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing, and has not filed a declaration under rule 16, the court may make an order that the appeal be dismissed.
(2) Where the appellant appears, and the respondent does not appear and has not filed a declaration under rule 16(3), the appeal may be heard ex parte.”
8. In this case, the appellants have consistently failed to attend court on the dates set down for hearing and/or directions in the matter. The appellants have similarly failed to comply with court directions especially with regard to filing of written submissions. This conduct clearly demonstrates that the appellants have lost interest in prosecuting the appeal. Consequently, I do hereby invoke the provisions of Order 42 Rules 20 and 35 of the Civil Procedure Rules and dismiss this appeal with costs for want of prosecution.
It is so ordered.
Dated, signed and delivered at Nairobi this 17 th day of September 2026.