[2020] KEHC 9276 (KLR)
The court found that the respondent had made continuous and documented efforts to obtain the typed proceedings from the lower court since September 2016, including providing their own typed copies and following up with the registry. The delay in filing the record of appeal was therefore not due to the respondent's...
Source-derived case information.
- Citation
- [2020] KEHC 9276 (KLR)
- Parties
- Applicant: Centaurus Company Limited; Respondent: Aloona Industries Kenya Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 592 of 2016
- Procedural Posture
- Civil Application / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Stay of Execution, Record of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Centaurus Company Limited
Applicant
Aloona Industries Kenya Limited
Respondent
Procedural Posture
Civil Application / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in filing the record of appeal.
- 2 Whether the delay in prosecuting the appeal is attributable to the respondent or to the lower court.
- 3 Whether the respondent is entitled to the release of the decretal sum and costs.
Ratio Decidendi
The court found that the respondent had made continuous and documented efforts to obtain the typed proceedings from the lower court since September 2016, including providing their own typed copies and following up with the registry. The delay in filing the record of appeal was therefore not due to the respondent's indolence or bad faith but was attributable to the administrative delays of the lower court. The court held that it would be unjust to dismiss the appeal for want of prosecution in these circumstances, as the respondent had demonstrated diligence and readiness to proceed once the necessary documents were supplied. The application to dismiss the appeal was thus dismissed, and the...
Court Disposition
application dismissed
Orders
- The application dated 19th November, 2018 is dismissed.
- Costs of the application to be in the cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL CASE NO. 592 OF 2016
CENTAURUS COMPANY LIMITED....................................................APPLICANT
VERSUS
ALOONA INDUSTRIES KENYA LIMITED....................................RESPONDENT
RULING
1. The application dated 19th November, 2018 seeks orders that:
“1. That the appeal filed on 16th September, 2016 be dismissed for want of prosecution.
2. That the decretal amount of Ksh.419,003. 61 together with any accrued interest deposited in a joint interest earning account number 1004823431 at NIC Bank be released to the Respondent/Applicant’s advocates.
3. That the costs of this application be borne by the Appellant.”
2. The application is predicated on the grounds stated on the face of the application and the affidavit in support. Judgment was entered by the lower court on 16th August, 2016. The Respondent (Appellant) was dissatisfied with the said judgment and filed the appeal herein. The Respondent (Appellant) filed an application for stay of execution which was allowed on condition that the decretal sum was deposited in a joint account of the advocates for the parties. The Applicant’s complaint is that since the filing of the Memorandum of Appeal on 16th September, 2016, no Record of Appeal has been filed. The Applicant accuses the Respondent of bad faith and indolence for failure to prosecute the appeal
3. The application is opposed on the following grounds:
“1. That the application herein is baseless, unmeritorious and a total waste of court’s time and should be dismissed with costs to the Respondent as the orders are been prematurely sought as the proceedings in the lower court are yet to be typed.
2. That despite all reasonable efforts on the part of the Respondent the lower court is yet to complete typing of proceedings. The delay is therefore not attributed to the Respondent but to the lower court.
3. That grant of orders sought will be very prejudicial to the Respondent as the court will have closed the door on an innocent litigant who is ready and willing to ventilate its case before the High court.
4. That the Respondent is however ready to prosecute its appeal as soon as the proceedings are ready.
5. That the application is otherwise an abuse of the court’s process and should be dismissed with costs.
4. It is averred in the affidavit by counsel for the Respondent that the lower court is yet to supply them with the typed copies of the lower court file. That the Respondent eventually applied for the handwritten proceedings and typed the same and forwarded them to the lower court but the registry misplaced the same. That the Respondent’s side forwarded fresh copies of the typed proceedings to the lower court on 17th February, 2019 but they are yet to be supplied with the certified copies of the typed proceedings.
5. The application was argued by way of written submissions which I have considered alongside the lists of authorities filed.
6. It is evident from the several letters exhibited herein by the Respondent (annexture No.VW1-VW4) that since September, 2016, the Respondent has been requesting for the typed proceedings and subsequently for the certified copies of the typed proceedings but the same have not yet been availed. In the circumstances, this court holds that the delay has been explained to the satisfaction of the court. The Respondent cannot be blamed for the delay.
7. In the upshot, this court is persuaded to allow the appeal to be heard on merits on priority basis. Consequently, the application is dismissed with costs in cause.
Date, signed and delivered at Nairobi this 6th day of Feb., 2020
B. THURANIRA JADEN
JUDGE