[2020] KEHC 1900 (KLR)
The court found that the delay in prosecuting the appeal was not occasioned by the appellant but by the trial court's delay in supplying certified copies of proceedings and judgment. This averment was not contested by the respondent. Furthermore, the appeal had not yet been admitted to hearing, a prerequisite for...
Source-derived case information.
- Citation
- [2020] KEHC 1900 (KLR)
- Parties
- Appellant: Benjo (K) Limited; Respondent: James Kimani Gatiba (Suing in his capacity as the Administrator of the estate of Geoffrey Katiba Kimani (Deceased))
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 285 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution
- Outcome
- motion to dismiss appeal for want of prosecution dismissed
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Delay in Prosecution, Inherent Powers of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjo (K) Limited
Appellant
James Kimani Gatiba (Suing in his capacity as the Administrator of the estate of Geoffrey Katiba Kimani (Deceased))
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant.
- 2 Whether the delay in prosecuting the appeal was occasioned by the appellant or by the court.
- 3 Whether the appeal can be listed for hearing before admission under Section 79B of the Civil Procedure Act.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not occasioned by the appellant but by the trial court's delay in supplying certified copies of proceedings and judgment. This averment was not contested by the respondent. Furthermore, the appeal had not yet been admitted to hearing, a prerequisite for listing the appeal for hearing. Although the court retains inherent power to dismiss an appeal for want of prosecution, such power should not be exercised where the delay is not attributable to the appellant. Therefore, the application to dismiss the appeal for want of prosecution was found to be without merit and was dismissed.
Court Disposition
motion to dismiss appeal for want of prosecution dismissed
Orders
- The motion dated 18th October 2019 is dismissed with costs abiding the outcome of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 285 OF 2018
BENJO (K) LIMITED........................................................................APPELLANT
-VERSUS-
JAMES KIMANI GATIBA (Suing in his capacity as
the Administrator of the estate ofGEOFFREY
KATIBA KIMANI(DECEASED)....................................................RESPONDENT
RULING
1) The respondent herein took out the motion dated 18th October2019 in which she sought for this appeal to be dismissed for want of prosecution. Salome M. Beacco, learned advocate for the respondent filed an affidavit she swore in support of the motion.
2) When served with the motion, the appellant herein filed thereplying affidavit sworn by Allan Odongo, learned advocate for the appellant to oppose the application. When the motion came up for interpartes hearing, this court with the concurrence of parties directed the application to be disposed of by written submissions.
3) I have considered the grounds stated on the face of the motionand the facts deponed in the affidavits filed in support and against the application. I have equally considered the written submissions. The main order sought by the respondent is for this appeal to be dismissed for want of prosecution.
4) It is argued that the appellant has lost interest in the appealand that is why it has taken no steps to prosecute its appeal since the date of its filing i.e on 25thJune 2018. It is submitted that the continued pendency of this appeal has greatly prejudiced the respondent since he is unable to enjoy the fruits of his judgment.
5) In response, the appellant beseeched this court not to dismissthe appeal on the basis that the delay to prosecute the same was not occasioned by it but by the court. It is said that there was a delay in procuring certified copies of the decree, judgment and typed proceedings on the part of the trial court. In other words, it was submitted that the trial failed to furnish the appellant with certified copies of the typed proceedings and judgment.
6) The appellant further argued that the application is prematurebecause the appeal has not been admitted to hearing under Section 79B of the Civil Procedure Act and under Order 42 of the Civil Procedure Rules. The appellant stated that it is eager to prosecute the appeal and it therefore beseeched this court to indulge it to prosecute the appeal.
7) Having considered the material placed before this court togetherwith the written submissions, it is apparent that the averment by the appellant/respondent to the effect that the trial court delayed in supplying the appellant with certified copies of proceedings and the judgment. The averment is not contested by the respondent/ applicant.
8) It is also not disputed that the appeal has not been admitted tohearing, therefore the appeal cannot be listed for hearing unless such a condition has been fulfilled. This court is alive of the fact that notwithstanding that the appeal has not been admitted, the court retains the power to dismiss the appeal in exercise of its inherent power for want prosecution under Section 3A of the Civil Procedure Act where the appellant has intentionally failed to take the necessary steps to have the appeal placed before a judge in chambers for admission.
9) On the basis of the reason advanced by the appellant to explainthe delay to prosecute the appeal, I am convinced that the appeal should not be dismissed for want of prosecution. Consequently, the motion dated 18thOctober 2019 is found to be without merit. The same is dismissed with costs abiding the outcome of the appeal.
Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 6th day of November, 2020.
..............................
J. K. SERGON
JUDGE
In the presence of:
……………………………. for the Appellant/Applicant
……………………………. for the Respondent