[2018] KEHC 5553 (KLR)
The court found that the delay in prosecuting the appeal was not deliberate on the part of the appellant, but rather a result of systemic shortcomings within the court system, specifically the failure to provide certified copies of the proceedings and judgment despite repeated requests. The court held that such a...
Source-derived case information.
- Citation
- [2018] KEHC 5553 (KLR)
- Parties
- Appellant: Benson Ongaki; Respondent: Carolyne Wangui Wachira; Respondent: Anthony Muthomi Mati
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 483 of 2013
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Process, Court Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Ongaki
Appellant
Carolyne Wangui Wachira
Respondent
Anthony Muthomi Mati
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the appeal was deliberate or attributable to the appellant.
- 3 Whether systemic shortcomings of the court can be visited upon the parties.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not deliberate on the part of the appellant, but rather a result of systemic shortcomings within the court system, specifically the failure to provide certified copies of the proceedings and judgment despite repeated requests. The court held that such a mistake, not entirely within the parties' making, should not be visited upon them. As the appellant had not taken advantage of any order and his application for stay of execution had previously been dismissed, the court concluded that the application for dismissal for want of prosecution could not succeed. The application was therefore dismissed, and directions were given for the...
Court Disposition
application dismissed
Orders
- The application for dismissal of the appeal for want of prosecution is dismissed.
- The lower court record shall be provided within 14 days from the date of this ruling.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL 483 OF 2013
BENSON ONGAKI...................................................................APELLANT
VERSUS
CAROLYNE WANGUI WACHIRA.............................1ST RESPONDENT
ANTHONY MUTHOMI MATI..................................2ND RESPONDENT
RULING
By an application dated 16th August, 2017 the respondents have applied for dismissal of the appeal herein for want of prosecution. The application is brought under Order 42 Rule 35 of the Civil Procedure Rules. The reasons are set out on the face of the application and there is a supporting affidavit sworn by the advocate for the respondents.
The application is opposed and the appellant has filed a replying affidavit. The appellant has demonstrated in the replying affidavit that, over a period of time, the he has communicated to the Deputy Registrar requesting for certified copies of the proceedings and judgment of the lower court to no avail. It is clear that the appellant is a victim of systemic shortcomings of the courts and the delay in lodging the appeal is not deliberate .A mistake not entirely within the parties’ making as in the instant case cannot be visited upon the parties.
The appellant has not been accused of taking advantage of any order because his application for stay of execution was dismissed by the court on 12th September, 2014. Taking into consideration the submissions by the parties herein, this application must fail. The same is accordingly dismissed.
I direct that the lower court record shall be provided within 14 days from the date of this ruling and thereafter the record of appeal to be filed within 14 days of receipt of the proceedings by the appellant. There is no order as to costs.
Dated, signed and delivered at Nairobi this 13th Day of June, 2018.
A. MBOGHOLI MSAGHA
JUDGE