[2007] KEHC 193 (KLR)
The court found that although the delay of two and a half years in prosecuting the appeal was excessive and would ordinarily justify dismissal for want of prosecution, the circumstances indicated that both the appellant and the court registry contributed to the delay. The appellant had written several letters to the...
Source-derived case information.
- Citation
- [2007] KEHC 193 (KLR)
- Parties
- Appellant: A.O. Bayusuf & Sons Limited; Respondent: Ibrahim Adan Ali
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 396 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed with costs to the applicant; liberty to apply after three months granted
- Judges
- JM Khamoni
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Court Registry Conduct
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
A.O. Bayusuf & Sons Limited
Appellant
Ibrahim Adan Ali
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 application to dismiss was brought under the correct legal provisions.
- 3 Whether the delay in prosecuting the appeal is excusable given the conduct of the court registry and the appellant.
Ratio Decidendi
The court found that although the delay of two and a half years in prosecuting the appeal was excessive and would ordinarily justify dismissal for want of prosecution, the circumstances indicated that both the appellant and the court registry contributed to the delay. The appellant had written several letters to the registry seeking the proceedings, which were not replied to, and the registry's inefficiency could not be ignored. While the application was brought under an incorrect rule, the court was prepared to consider it on its merits. However, in the interests of justice and giving the appellant the benefit of the doubt, the court declined to dismiss the appeal at this stage but...
Court Disposition
application dismissed with costs to the applicant; liberty to apply after three months granted
Orders
- Chamber Summons dated 18th December, 2006 is dismissed.
- Appellant to pay costs of the Chamber Summons to the Applicant.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI (NAIROBI LAW COURTS) Civil Appeal 396 of 2005
A.O. BAYUSUF & SONS LIMITED ………...…….…APPELLANT/RESPONDENT
VERSUS
IBRAHIM ADAN ALI …………………………………. RESPONDENT/APPLICANT
RULING
The Applicant who is the Respondent in the appeal in this suit, has filed Chamber Summons dated 18th December, 2006 seeking to have the Appellant’s appeal herein dismissed for want of prosecution, the memorandum of appeal having been filed on 14th June, 2005 and thereafter the Appellant having taken no step further to-date the third year being almost halfway.
The Appellant on the other hand blames the court Registry on the ground that several letters have been written without replies being received from the court Registry which is also not releasing the proceedings. At the same time Mrs. Michiki counsel for the Appellant points out that the application has been brought under wrong provisions of the law Order XLI Rule 3(2) of the Civil Procedure Rules which does not exist and wants the application be dismissed as it is brought before directions taken.
Mr. Owenga for the Applicant says he is relying on section 3A of the Civil Procedure Act even if Rule 3(2) of order XLI does not exist and directions have not been taken.
From my careful consideration of the matter Mr. Omwenga saying that the proceedings have been typed and that it is the Appellant’s counsel who is failing in collecting the proceedings from the Registry, and having seen the letters the appellant’s counsel has written to the court which letters he says are not being replied, I do sympathise with both sides. The Applicant must feel concerned in the circumstances and in as much as the Appellant’s counsel may be relying too much on correspondence without going for the proceedings in person, I feel the court Registry must have a share of the blame for failing to reply letters. I do not understand why that should be happening yet letters form an important channel through which day to-day business is conducted in every organization. Courts cannot afford to ignore letters as doing so definitely undermines court’s efficiency in the performance of court work.
With the above in my mind, although I feel that the delay of 2 ½ years without step being taken is too long and the fact that directions have not been taken would not have deterred me from granting this application, I feel I should give the Appellant the benefit of the doubt to allow him a little more time to see what he will do to take further steps in the appeal.
Accordingly, I do hereby dismiss Chamber Summons dated 18th December, 2006 but order the Appellant to pay costs of the Chamber Summons to the Applicant and grant the Applicant, liberty to apply after a period of three (3) months from the date of this ruling.
Dated and delivered at Nairobi this 5th day of December, 2007
J.M. KHAMONI
JUDGE