[2010] KEHC 507 (KLR)
The court found that the appellant had not taken prompt steps to obtain the signed decree and compile the record of appeal until prompted by the notice to show cause. However, since the appellant eventually took action by obtaining the signed decree and filing the record of appeal, the court exercised its discretion...
Source-derived case information.
- Citation
- [2010] KEHC 507 (KLR)
- Parties
- Appellant: Asman Shikuku; Respondent: Augustino Stephen Njoroge
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Appellant granted final opportunity to prosecute appeal; strict timeline imposed; costs of notice to show cause awarded to respondent.
- Legal Topics
- Dismissal for Want of Prosecution, Record of Appeal, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Asman Shikuku
Appellant
Augustino Stephen Njoroge
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in compiling and filing the record of appeal.
- 2 Whether the appellant had a valid reason for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not taken prompt steps to obtain the signed decree and compile the record of appeal until prompted by the notice to show cause. However, since the appellant eventually took action by obtaining the signed decree and filing the record of appeal, the court exercised its discretion in favour of the appellant. The court allowed the appeal to proceed but imposed a strict timeline for setting the appeal down for hearing, failing which the appeal would stand dismissed. Costs of the notice to show cause were awarded to the respondent.
Court Disposition
Appellant granted final opportunity to prosecute appeal; strict timeline imposed; costs of notice to show cause awarded to respondent.
Orders
- The appellant shall set down the appeal for hearing within 45 days of this ruling, failing which the appeal will stand dismissed.
- Costs of the notice to show cause are awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 42 OF 2007
ASMAN SHIKUKU..........................................................APPELLANT
VERSUS
AUGUSTINO STEPHEN NJOROGE..............................RESPONDENT
RULING
This appeal was filed way back on 16/5/2007. On 27/10/2010 this court took out a notice on the appellant to show cause why this appeal cannot be dismissed for want of prosecution. Mr. Mongeri, counsel for the appellant asked for time to file an affidavit in reply to the notice to show cause. When the matter came up for hearing Mr. Mongeri had not served the affidavit on the respondent who requested to be served so that they could reply. In the affidavit opposing the notice to show cause, Mr. Mongeri deponed that the appellant had been unable to compile the record of appeal since the decree had not been signed or certified and that copies were pending before the Deputy Registrar. When the notice to show cause was pending the appellant went ahead and filed the record of appeal on 24/11/2010.
I have looked at the record and noted that the decree was signed on 15/11/2010. If only signing of the decree was withholding the preparation of the record of appeal, it means that the appellant had just sat back and not attempted to request for the decree. It is not until he was prompted by this application that he took steps to get the decree signed and prepare the record. Since the appellant has now shown his interest in the matter, the court will exercise its discretion and give the appellant a chance to serve the record of appeal and have this appeal heard and determined. The appellant should ensure that this appeal is set down for hearing within 45 days hereof, in default it will stand dismissed. Costs of the notice to show cause on the respondent.
DATED and DELIVERED this 20th day of December, 2010.
R.P.V. WENDOH
JUDGE
PRESENT:
......................................................for the appellant.
.....................................................for the respondent.
Kennedy – Court Clerk.