[2015] KEHC 5828 (KLR)
The court found that the appellants, after filing the appeal in May 2010, had failed to take any steps to prosecute it, including not listing the appeal for directions or appointing a new advocate after their previous advocate withdrew. The appellants were properly served with the application for dismissal but did...
Source-derived case information.
- Citation
- [2015] KEHC 5828 (KLR)
- Parties
- Appellant: Beatrice Wambui Gikunju; Appellant: Rose Wambui Gikunju; Respondent: Samson Mbui Obadiah Koigi; Respondent: Albert Gikunju Njeru
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal 54 of 2013
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution with costs to the 1st respondent.
- Judges
- BN Olao
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Failure to Prosecute
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Beatrice Wambui Gikunju
Appellant
Rose Wambui Gikunju
Appellant
Samson Mbui Obadiah Koigi
Respondent
Albert Gikunju Njeru
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellants.
- 2 Whether the appellants were properly served and given an opportunity to be heard.
Ratio Decidendi
The court found that the appellants, after filing the appeal in May 2010, had failed to take any steps to prosecute it, including not listing the appeal for directions or appointing a new advocate after their previous advocate withdrew. The appellants were properly served with the application for dismissal but did not appear or respond. The court concluded that there was inordinate and unexplained delay in prosecuting the appeal, justifying its dismissal for want of prosecution. The application was therefore allowed and the appeal dismissed with costs to the 1st respondent.
Court Disposition
Appeal dismissed for want of prosecution with costs to the 1st respondent.
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the 1st respondent.
Full Case Text
Judgment text and source record
30 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
ELCA CASE NO. 54 OF 2013
BEATRICE WAMBUI GIKUNJU …………………….………………………………… 1ST APPELLANT
ROSE WAMBUI GIKUNJU …………………………………..………...……………… 2ND APPELLANT
VERSUS
SAMSON MBUI OBADIAH KOIGI ………………………………………………… 1ST RESPONDENT
ALBERT GIKUNJU NJERU …………………………………………………………….2ND RESPONDENT
(ANAPPEAL FROM THE JUDGMENT DELIVERED ON 13TH APRIL 2010 BY HON. E.M. NYAGA – R.M. AT KERUGOYA PRINCIPAL MAGISTRATE’S COURT CIVIL CASE NO. 166 OF 2009)
RULING
This is in respect to the 1st Respondent’s application dated 30th August 2012 seeking the dismissal of this appeal for want of prosecution. It is supported by the 1st respondent’s affidavit in which he has deponed that although this appeal was filed in May 2010, the appellants have taken no steps to prosecute it.
In his submissions at the hearing of this application, Mr. Mwai for the 1st respondent told the Court that although served with the application, the appellants did not appear to canvass the same.
I have considered the application.
The record shows that this appeal was admitted to hearing by Warsame J. (as he then was) at the High Court Embu on 7th March 2011. The appellants were previously represented by Maina Kagio advocate who withdrew from acting for them on 3rd August 2012 hence necessitating service upon the appellants in person who, as I have indicated above, did not appear at the hearing of this application nor appoint another advocate to appear for them. The appellants have not listed the appeal for directions nor taken any other step towards the prosecution of the same.
In the circumstances, this appeal is dismissed with costs to the 1st respondent.
B.N. OLAO
JUDGE
12THMARCH, 2015
12/3/2015
Before
B.N. Olao – Judge
Gichira – CC
Appellant – absent
Mr. Mwai for Respondent – present
COURT: Ruling delivered this 12th day of March, 2015 in open Court.
Mr. Mwai for Respondents present
Appellant absent.
B.N. OLAO
JUDGE
12TH MARCH, 2015