[2016] KEHC 1736 (KLR)
The court found that the appellant's explanation for the delay in prosecuting the appeal—namely, the late supply of typed proceedings and judgment by the trial court—was plausible and had not been controverted by the applicant. The court held that this justified the refusal to dismiss the appeal for want of...
Source-derived case information.
- Citation
- [2016] KEHC 1736 (KLR)
- Parties
- Appellant: Bournventure Ngala Seronge; Applicant: Justus Ombwro Omwoyo (Suing as the administrator of the estate of Samuel Ongiri Ombworo, Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 664 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution and for Release of Security
- Outcome
- motion dismissed with costs to the appellant
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Release of Security, Appeal Record Completeness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bournventure Ngala Seronge
Appellant
Justus Ombwro Omwoyo (Suing as the administrator of the estate of Samuel Ongiri Ombworo, Deceased)
Applicant
Procedural Posture
Civil Appeal / Ruling on Motion to Dismiss Appeal for Want of Prosecution and for Release of Security
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant.
- 2 Whether the court should order the release of all or part of the decretal sum deposited as security to the respondent pending appeal.
Ratio Decidendi
The court found that the appellant's explanation for the delay in prosecuting the appeal—namely, the late supply of typed proceedings and judgment by the trial court—was plausible and had not been controverted by the applicant. The court held that this justified the refusal to dismiss the appeal for want of prosecution. Regarding the request for release of the decretal sum, the court agreed with the appellant that it would be unwise to order payment to the respondent without assurance of refund should the appeal succeed. The court further noted that the alleged incompleteness of the record of appeal was not an issue to be determined at this stage but could be addressed at the stage of...
Court Disposition
motion dismissed with costs to the appellant
Orders
- The motion dated 30.3.2016 is dismissed with costs to the appellant.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 664 OF 2013
BOURNVENTURE NGALA SERONGE........... APPELLANT/RESPONDENT
-V E R S U S –
JUSTUS OMBWRO OMWOYO (Suing as the
administrator of the estate of
SAMUEL ONGIRI OMBWORO (DECEASED) ............................APPLICANT
RULING
1. The respondent/applicant herein, took out the motion dated 30. 3.2016 in which he sought for.
1. THAT this honourable court do issue an order dismissing the appeal herein for want of prosecution.
2. THAT an order do issue directing the defendant, his servants, agents or any other person acting on his behalf to forthwith release to the plaintiff all sums deposited as security in compliance with the orders of the subordinate court issued on 17th April 2014 which sums are now held in a bank account known as Njeri Kariuki & Co. Advocates and Wangalwa Oundo & Co. Advocates, Account No. 0013102455002 held at Chase Bank, City Centre Branch.
3. THAT in the alternative the honourable court do issue an order directing that in the interim period the applicant do receive half of the judgment sum to be paid from the sum deposited as security at Chase bank as security while the other remaining half of the judgment sum shall remain in the bank until further orders of the court.
4. THAT costs of this application be provided for.
2. The motion is supported by the affidavit of Justus Ombworo Omwoyo. When served, the appellant filed the replying affidavit of Njeri Kariuki to oppose the motion. When the motion came up for interpartes hearing, learned counsels appearing in this matter recorded a consent order to have the application disposed of by written submissions.
3. I have considered the grounds stated on the face of the motion plus the facts deponed in the affidavits filed in support and against. I have also taken into account the rival written submission. It is the submission of the respondent that over two years have now lapsed since the memorandum of appeal was filed and yet the appellant has taken no steps to list the appeal for hearing hence the appeal should be dismissed for want of prosecution. The respondents further beseeched this court to in the alternative issue an order that he appellant pays half the decretal sum to the respondents if the court is inclined to deny the motion. The respondents pinpointed that the record of appeal filed by the appellant is incomplete since crucial primary documents have not been included.
4. The appellant on the other hand is of the view that the delay to file the appeal was beyond its control. It was pointed out that there was a delay in typing proceedings before the trial court. The appellant further contended that it would be premature to make an order directing the release of part of the decretal sum yet the appeal seeks to overturn the whole judgment. It is also argued that it would be unwise to make the order since there is no guarantee that the respondents will be in a position to refund the money. The question as to whether or not the appeal should be dismissed for want of prosecution is the main issue this court seeks to answer. In determining the question, the court has to consider the explanation given by the appellant to justify the delay in prosecuting the appeal. The appellant has stated that it took time for the trial court to supply typed proceedings and judgment hence it was difficult to prepare the record of appeal. This argument has not been controverted by the respondents. The respondents have stated that the record of appeal filed is incomplete. With respect, I do not think that is an issue which should be dealt with at this stage. It is an issue that can be taken up at the stage of taking directions.
5. The reason given to justify the delay is plausible. Consequently the motion must fail. This court has been asked to make an order directing the appellant to make partial payment to the respondents. With respect, I agree with the submissions of the appellant that is unwise to make the order while there is no assurance that the respondents will be in a position to refund the money in case the appeal is successful.
6. In the end the motion is found to be without merit. It is dismissed with costs to the appellant.
Dated, Signed and Delivered in open court this 29th day of September, 2016.
J. K. SERGON
JUDGE
In the presence of:
.............................................................. for the Appellant
............................................................... for the Respondent