[2018] KEHC 4569 (KLR)
The court found that although the delay in compiling and filing the record of appeal was inordinate, the respondent had provided a reasonable explanation for the delay, including evidence of repeated requests for proceedings from the lower court. The court exercised its discretion to allow the appeal to proceed,...
Source-derived case information.
- Citation
- [2018] KEHC 4569 (KLR)
- Parties
- Applicant: Charles Anyanga; Respondent: Security 7.
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 487 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed with conditions
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Filing Record of Appeal, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Anyanga
Applicant
Security 7.
Respondent
Procedural Posture
Civil Appeal / 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 compiling and filing the record of appeal has been sufficiently explained.
Ratio Decidendi
The court found that although the delay in compiling and filing the record of appeal was inordinate, the respondent had provided a reasonable explanation for the delay, including evidence of repeated requests for proceedings from the lower court. The court exercised its discretion to allow the appeal to proceed, emphasizing the importance of hearing matters on their merits rather than dismissing them on technicalities. The application to dismiss the appeal was therefore denied, but the court imposed a strict condition that the record of appeal must be filed, served, and the appeal listed for directions within 90 days, failing which the appeal would stand dismissed.
Court Disposition
application dismissed with conditions
Orders
- The application to dismiss the appeal is dismissed.
- The record of appeal must be filed, served, and the appeal listed for directions within 90 days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 487 OF 2014
CHARLES ANYANGA..................................APPLICANT
VERSUS
SECURITY 7. .............................................RESPONDENT
RULING
1. The application dated 14th December, 2017 seeks orders that the appeal herein be dismissed for want of prosecution.
2. The Application is predicated on the grounds stated therein and is supported by the affidavit sworn by counsel for the Applicant. It is stated that it is three (3) years since the filing of the appeal. That the Record of Appeal is yet to be filed and matter listed for directions. That the Respondent is not interested in prosecuting this appeal even though the proceedings have been typed and the Applicant even obtained a copy of the same on 7th November, 2017.
3. The application is opposed. It is stated in the replying affidavit that the delay has been occasioned by the failure to be supplied with the proceedings and judgment of the Lower Court. It is further stated that the application is an abuse of the court process.
4. The application was canvassed by way of written submissions which I have considered.
5. The appeal was filed on 5th November, 2014. The delay in compiling and filing the record of appeal is inordinate. However, the delay has been explained. The Respondent has exhibited two letters through which he requested for proceedings in year 2014 and once in year 2016. This court is therefore inclined to give the appeal a chance to be heard on merits.
6. With the foregoing, I dismiss the application on condition that the record of appeal be filed served and appeal listed for directions within 90 days from date hereof. In default the appeal to stand dismissed. Costs in cause.
Date, signed and delivered at Nairobi this 26th day of July, 2018
B. THURANIRA JADEN
JUDGE