[2009] KEHC 668 (KLR)
The court found that the failure to prosecute the appeal was not due to any omission or inaction by the appellant, but rather due to the court's failure to procure the lower court file necessary for the admission and further prosecution of the appeal. Since the appellant could not move the appeal forward without the...
Source-derived case information.
- Citation
- [2009] KEHC 668 (KLR)
- Parties
- Appellant: Anthony Bachia; Respondent: John Michael Wanjau
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 31 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Court File Availability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Anthony Bachia
Appellant
John Michael Wanjau
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the delay in prosecuting the appeal was attributable to the appellant or to the court's failure to avail the lower court file.
Ratio Decidendi
The court found that the failure to prosecute the appeal was not due to any omission or inaction by the appellant, but rather due to the court's failure to procure the lower court file necessary for the admission and further prosecution of the appeal. Since the appellant could not move the appeal forward without the lower court file, the application to dismiss the appeal for want of prosecution was not justified. The court ordered the Deputy Registrar to immediately avail the Chief Magistrate's file and proceed with the pre-admission procedures for the appeal. The application for dismissal was therefore dismissed, and costs were ordered to abide the outcome of the appeal.
Court Disposition
application dismissed
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- The Deputy Registrar is ordered to immediately avail the Chief Magistrate's file in Eldoret CM.CC.NO.1901 of 1994 and diligently prosecute the pre-admission procedures for the appeal.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT ELDORET
Civil Appeal 31 of 2005
ANTHONY BACHIA:………………………….APPELLANT
VERSUS
JOHN MICHAEL WANJAU:………………..RESPONDENT
RULING
This is an application by way of Chamber Summons under Order XLI Rule 31 (1) and (2) of the Civil Procedure Rules and sections 3 and 3A of the Civil procedure Act and all other enabling provisions of the Law praying that the Appeal herein be dismissed for want of prosecution and costs be provided for. It is based on the grounds that the Appellant’s counsel has made no effort to move the court for any orders and that since the appeal was filed way back on 30th march 2005 no directions have been taken. The other grounds are that it is unfair to subject the Respondent to prejudice of pending litigation which the Appellant has no interest to prosecute and the appeal should be dismissed with costs to the Respondent. Counsel for the applicant/Respondent swore the supporting Affidavit to the application and stated that the memorandum of Appeal was filed on 30th March 2005 and the Record of Appeal was filed on 28th March 2007. He added that no action has ever been taken since then and it is apparent that the Appellant is not keen in prosecuting his Appeal and the same should be dismissed with costs.
In opposing the application the Respondent/Appellant filed grounds of opposition that the application is fatally defective, incompetent bad in law and lacks merit and that the same was premature and the issues of admission of an appeal and giving directions are judicial functions over which the Appellant has no control and in any event todate the Chief Magistrate’s court file has never been availed to this court and so the appeal cannot be admitted. At the hearing both counsel made submissions in support of their respective cases.
It is not denied that this appeal has not been admitted to hearing and it is true that the lower court’s file has never been availed so as for the Deputy Registrar of this court to execute the procedure as set out in section 79B of the Civil Procedure Act and Order 41 (8) of the Civil Procedure Rules in relation to Appeals. The reason the appeal has not been admitted to hearing is not by the failure of the Appellant. It is the court’s failure to procure the court file from which the appeal arises. The Respondent is to be commended for reactivating the process and accordingly the Deputy Registrar of this court is ordered to immediately avail the Chief Magistrate’s file in Eldoret CM.CC.NO.1901 of 1994 and diligently prosecute the pre-admission procedures for the Appeal. In the interim and for the reasons given herein the application under consideration is dismissed. Costs will abide in the Appeal.
Orders accordingly.
DATED AND DELIVERED AT ELDORET THIS 18th DAY OF NOVEMBER 2009.
P.M.MWILU
JUDGE
IN THE PRESENCE OF;
Mr. Kosgei holding brief for Nyairo
Mr. Omboto holding brief for Okara.
Court clerk - Paul Ekitela