[2006] KEHC 1997 (KLR)
The court found that the appellant had not taken any steps to prosecute the appeal since its filing on 15th September 2000. No affidavit or evidence was provided to show efforts to obtain proceedings or to move the appeal forward. The court held that the ends of justice required dismissal of the appeal for want of...
Source-derived case information.
- Citation
- [2006] KEHC 1997 (KLR)
- Parties
- Appellant: Catholic Diocese of Bungoma, Sister Lydia Achieng Makokha; Respondent: Bramwel Ouma Agwata
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 75 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Notice of Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Order Xli Rule 31 2, Appeal Process, Affidavit Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Catholic Diocese of Bungoma, Sister Lydia Achieng Makokha
Appellant
Bramwel Ouma Agwata
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI Rule 31(2) of the Civil Procedure Rules.
- 2 Whether the appellant demonstrated sufficient cause to prevent dismissal of the appeal.
Ratio Decidendi
The court found that the appellant had not taken any steps to prosecute the appeal since its filing on 15th September 2000. No affidavit or evidence was provided to show efforts to obtain proceedings or to move the appeal forward. The court held that the ends of justice required dismissal of the appeal for want of prosecution under Order XLI Rule 31(2) of the Civil Procedure Rules, as over four years had elapsed without action by the appellant.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed under Order XLI Rule 31(2) of the Civil Procedure Rules.
- Costs to the respondent in any event.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA Civil Appeal 75 of 2000
CATHOLIC DIOCESE OF BUNGOMA
SISTER LYDIA ACHIENG MAKOKHA ................................................... APPELLANT
VS
BRAMWEL OUMA AGWATA .............................................................. RESPONDENT
RULING
By a notice of dismissal of appeal, under Order XLI rule 31(2) of the civil Procedure Rules, the Deputy Registrar notified Kimaru Kiplagat & Co. Advocates and M/S Ashioya & Co. Advocates that the appeal would be placed before the Judge on 9th February, 2006 for dismissal unless sufficient cause is shown why such an order should not be made.
Both firms of Advocates were represented at the hearing- Mr Keter on behalf of the Appellant and Mr. Ashioya for the Respondent.
For the appellant, it was argued that the notice by the Registrar was premature because the proceedings had not been availed despite several requests. It is significant to note that the appellant did not file any affidavit as evidence in opposition. The advocate for the Appellant was merely talking from the bar.
For the Respondent, it was argued that, memorandum of appeal was filed on 15th September 2000. Together with the appeal, was a certificate of urgency and stay application. The matter was last in Court on 22nd November 2000 for the hearing of the application for stay, since then the Applicant went to sleep. That there is nothing on record to show that the Applicant has taken any action to process the appeal for hearing.
I have gone through the entire file and found a fact that there is no indication that the appellant has taken any step to process the appeal since its inception. In addition thereto, there is no evidence by way of affidavit filed by the appellant to show, if any, the steps taken to have the appeal heard.
The appeal was filed on 15th September 2000. It is over 4 years now. The ends of justice demands that this appeal be dismissed under order XLI Rule 31(2) of the Civil Procedure Rules, which I hereby do. Costs to the Respondent in any event.
Dated and delivered this 13th day of February 2006.
N.R.O. OMBIJA
JUDGE