[2019] KEHC 7136 (KLR)
The court found that although the appellants had not complied with the directions to file and serve the record of appeal and to set the appeal down for directions, the explanation provided—that the typed proceedings were not previously available but were now ready—was reasonable. In the interests of substantive...
Source-derived case information.
- Citation
- [2019] KEHC 7136 (KLR)
- Parties
- Appellant: Coast Bus Safaris; Appellant: Coastline Safari; Appellant: Coast Bus (Mombasa) Limited; Respondent: Willis Omusinde Omboyo (Suing as the Legal Representative of the Estate of the late Hezron Ochieng Omboyo)
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 77 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appellants granted 21 days to file and serve record of appeal; failure will result in dismissal for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Directions, Extension of Time, Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Coast Bus Safaris
Appellant
Coastline Safari
Appellant
Coast Bus (Mombasa) Limited
Appellant
Willis Omusinde Omboyo (Suing as the Legal Representative of the Estate of the late Hezron Ochieng Omboyo)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to failure to comply with court directions.
- 2 Whether the appellants should be granted additional time to file and serve the record of appeal.
Ratio Decidendi
The court found that although the appellants had not complied with the directions to file and serve the record of appeal and to set the appeal down for directions, the explanation provided—that the typed proceedings were not previously available but were now ready—was reasonable. In the interests of substantive justice and giving parties a fair opportunity to prosecute their appeal, the court exercised its discretion to grant the appellants a final extension of 21 days to file and serve the record of appeal. The court made it clear that failure to comply within this period would result in the appeal being dismissed for want of prosecution.
Court Disposition
appellants granted 21 days to file and serve record of appeal; failure will result in dismissal for want of prosecution
Orders
- Appellants granted 21 days from the date of this ruling to file and serve the record of appeal.
- Failure to comply will result in the appeal being dismissed for want of prosecution.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL NO.77 OF 2013
COAST BUS SAFARIS....................................................1ST APPELLANT
COASTLINE SAFARI....................................................2ND APPELLANT
COAST BUS (MOMBASA) LIMITED.........................3RD APPELLANT
VERSUS
WILLIS OMUSINDE OMBOYO
(Suing as the Legal Representative
of the Estate of the late HEZRON
OCHIENG OMBOYO(DECEASED)...........................RESPONDENT
RULING
This matter was coming up for mention to confirm the directions of Justice Njoki on 28th day of November, 2018 to the effect that the respondents file and serve the recorded appeal within 60 days, and thereafter the appeal for directions before a Judge within 15 days of this . Failing to comply with these the directions the Judge directed that the Applicant be at liberty to move the Registrar to place the file before a Judge for dismissal of the appeal for want of prosecution.
It is now almost four months since directions were given and the appeal has not been set down for directions as directed by Hon. Justice Njoki.
The Applicants counsel has then prayed that the appeal be dismissed for want of prosecution since the appellant has failed to comply with the directions of 28th November, 2018.
Mr Kagram, holding brief for the appellants counsel explained that the reason that the appellants haven not complied with the directions is because they had yet to be furnished with the typed recorded proceedings .He prayed that they be given a further 21 days to file and serve the said record of appeal since they had information that the proceedings were now ready.
This was opposed by the respondents counsel on the ground that substantive justice applies to both sides and that the Respondents were being denied chance to enjoy the fruits of their judgment.
I have considered the arguments by both counsels with regard to whether the appeal should be dismissed for want of prosecution. It is true that the record of appeal is yet to be filed and served. It is also true that the appeal has not been listed for directions.
However, from the explanation given by the appellant’s counsel, where they have indicated that the proceedings are now ready, they are allowed one more chance to have this appeal set down for directions.
The appellants are therefore granted 21 days to file and server the record of appeal. Failure to comply with the directions will render the appeal dismissed for want of prosecution.
Mention on 3. 6.2019 to confirm.
(a) Filing and service of recorded appeal
(b) For the directions
Ruling signed and dated this 9th day of May, 2019.
LADY JUSTICE D. O.CHEPKWONY
Ruling delivered and dated this 13th day of May, 2019
JUSTICE P. J.OTIENO
In the presence of;
Mr Kuhere for the Respondents
Miss Mutune for Ogunde for Appellants
C/clerk- Bancy