[2020] KEHC 9823 (KLR)
The court found that the delay in prosecuting the appeal was due to the court's failure to avail the lower court file, not any fault of the respondents. Since the respondents are not the custodians of the lower court file and have demonstrated efforts to obtain it, they cannot be penalized for the delay. The...
Source-derived case information.
- Citation
- [2020] KEHC 9823 (KLR)
- Parties
- Appellant: Cheli & Peacock Management Ltd; Appellant: Noah Muya Adira; Respondent: Daniel Kimani Kamau
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 614 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Stay of Execution, Delay in Prosecution, Record of Appeal, Court Administration
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cheli & Peacock Management Ltd
Appellant
Noah Muya Adira
Appellant
Daniel Kimani Kamau
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 stay of execution order should be discharged.
- 3 Who bears responsibility for the delay in availing the lower court file.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was due to the court's failure to avail the lower court file, not any fault of the respondents. Since the respondents are not the custodians of the lower court file and have demonstrated efforts to obtain it, they cannot be penalized for the delay. The responsibility for providing the lower court proceedings rests with the court administration. Therefore, the application to dismiss the appeal for want of prosecution was dismissed, and the matter was referred back to the Deputy Registrar to ensure the lower court file is availed so that the appeal can proceed.
Court Disposition
application dismissed
Orders
- The application dated 27th November, 2019 is dismissed with costs in the cause.
- The matter is referred back to the Deputy Registrar to follow up on the lower court file to conclusion.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 614 OF 2011
CHELI & PEACOCK
MANAGEMENT LTD...............................1ST APPELLANT/RESPONDENT
NOAH MUYA ADIRA .............................2ND APPELLANT/RESPONDENT
VERSUS
DANIEL KIMANI KAMAU............................RESPONDENT/APPLICANT
RULING
1. The application dated 27th November, 2019seeks orders that:
(1) That, the appeal be listed before a judge and that it be dismissed for want of prosecution.
(2) That the order of stay of execution granted on 1st February, 2012 be discharged.
(3) That the cost of this application be borne by the Appellant.
2. It is stated in the grounds and the affidavit in support of the application that judgment was entered in favour of the Applicant on 22nd November, 2011. That the Respondents subsequently filed the Appeal herein and obtained stay of execution orders upon furnishing a bank guarantee as security for the due performance of the decree. The Applicant accuses the Respondent of inertia and states that the Respondents have not taken any steps to file the Record of Appeal and prosecute the Appeal.
3. The application is opposed. It is averred in the replying affidavit and further affidavit that the Respondents applied to be supplied with certified and typed copies of the lower court proceedings but that they are yet to be furnished with the same. That the Appeal herein has been mentioned severally before the Deputy Registrar to have the lower court file availed but the same is yet to be provided despite the Deputy Registrar having taken steps to summon the Executive Officer of the Lower Court. It is contended that the Respondents are willing and ready to proceed with the Appeal if the lower court proceedings ae availed.
4. I have considered the application, the response to the same and the written submissions filed by the respective counsel for the parties.
5. I have perused this file. It is apparent that the lower court file has not been availed despite several mentions before the Deputy Registrar and issuance of summons to the Executive Officer. These are uncontested facts. The responsibility of availing the lower court proceedings lies squarely with the court. The Respondents cannot be faulted as they are not the custodians of the lower court file. The delay herein is inordinate and unfortunate. I refer the matter back to the Deputy Registrar to follow up on the matter of the lower court file to conclusion so that the parties can take any other steps. Consequently, the application is dismissed with costs in cause.
Date, signed and delivered at Nairobi this 25th day of June, 2020
B. THURANIRA JADEN
JUDGE