[2011] KEHC 2441 (KLR)
The court found that although there was delay on the part of the appellant's counsel in prosecuting the appeal, the delay was not entirely inexcusable as it was partly occasioned by difficulties in obtaining the lower court file and certified proceedings. The court acknowledged that counsel could have acted with...
Source-derived case information.
- Citation
- [2011] KEHC 2441 (KLR)
- Parties
- Appellant: A.P.A. Insurance Ltd; Respondent: G.W.G (Suing as a Next friend to S.K)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 9 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appellant granted 90 days to prepare and file the record of appeal; appeal to stand dismissed if not complied with.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeals Process, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.P.A. Insurance Ltd
Appellant
G.W.G (Suing as a Next friend to S.K)
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the delay in prosecuting the appeal was excusable or attributable to factors beyond the appellant's control.
- 3 Whether the mistakes or delays of counsel should be visited upon the party.
Ratio Decidendi
The court found that although there was delay on the part of the appellant's counsel in prosecuting the appeal, the delay was not entirely inexcusable as it was partly occasioned by difficulties in obtaining the lower court file and certified proceedings. The court acknowledged that counsel could have acted with greater diligence, but ultimately held that the mistakes or delays of counsel should not be visited upon the party. Since the necessary proceedings were now before the court, the appellant was granted a final opportunity to prepare and file the record of appeal within 90 days, failing which the appeal would stand dismissed. The court exercised its discretion in favour of the...
Court Disposition
Appellant granted 90 days to prepare and file the record of appeal; appeal to stand dismissed if not complied with.
Orders
- Appellant to prepare the record of appeal, have it admitted, and take a hearing date within 90 days from the date of this ruling.
- In default of compliance, the appeal will stand dismissed upon expiration of the 90 days.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 9 OF 2009
A.P. A. INSURANCE LTD……………………............……APPELLANT
VERSUS
G.W.G (Suing as a
Next friend to S.K)………….....................................….....RESPONDENT
RULING
This appeal was filed on 19th January 2009. It has not been prosecuted since. On 27th April 2011, the court took a Notice to Show Cause under Order 42 Rule 35(2) of the Civil Procedure Rules, 2010. Counsel for the Applicant, Mr. Kagucia filed an affidavit seeking that the appeal should not be dismissed. He has deponed that the ruling appealed from was delivered on 16th December 2008, the appeal was filed on 17th January 2008. On 16th January, 2009, he wrote to the Senior Resident Magistrate asking for typed proceedings and a certified copy of the Ruling (JGK1). Visits to Molo Court by the office of the Advocate bore no fruits and on 25th June 2010, he addressed a letter to the Deputy Registrar, High Court to intervene in procuring a copy of the proceedings and Ruling.
The Registrar, Nakuru wrote to Molo Registry to forward the file on 2nd April 2009 (JGK4) but by letter of 23rd October 2010 from Mbeche Advocate, counsel was notified that the file was still in Molo, the same having been perused by Mr. Mbeche’s clerk. It is then that Mr. Kagucia wrote to the Senior Resident Magistrate, Molo to avail the file (JGK6) and on 8th November 2010 he received a certified copy of Ruling and proceedings. When preparing the record of appeal, they noted an error in the order extracted.
On 5th January 2011, he wrote to Deputy Registrar, Nakuru to have it amended (JGK7). That the order has now been amended and the record is being compiled and that all efforts were made to have the appeal prosecuted but the delay was occasioned by factors beyond its control.
The Respondent did not have anything to say in response to the affidavit. I have taken into account the averments by counsel contained in his affidavit. It is my view that counsel could have done better than he did. For example, from 16th January 2009 when the letter requesting for proceedings was written, there is no evidence to show that the counsel’s office made any physical visits to Molo Court to ascertain what was going on in the file. From 17th January 2009, the next step that was taken was on 25th June 2010, over a year later. It took the Respondent’s counsel to find that the file was still in Molo. Even after the proceedings were delivered the counsel on 8th November 2010, it took counsel till 5th January 2011 to extract the order and it again took another 2 months to notify the Deputy Registrar, Nakuru, that there was an error in the order. There was delay on the part of counsels office too.
However, since the proceedings are now in court and this court should not visit the mistakes of counsel on the party, I will allow the appellant 90 days within which to prepare the record of appeal, have it admitted and take a date for hearing, in default, the appeal will stand dismissed upon expiration of the 90 days.
DATED and DELIVERED this 11th day of May 2011.
R. P. V. WENDOH
JUDGE
PRESENT:
Mrs Mugweru holding brief for Mr. Kagucia
Mr. Nderitu holding brief for Mr. Mbeche for Respondent
Kennedy – Court Clerk
Court: Ruling read.