[2021] KEHC 8707 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal since its admission for hearing and after the dismissal of an application for mandatory injunction. No record of appeal was filed or served, and the appellant had effectively abandoned the matter. Under Order 17 Rule 2 of the...
Source-derived case information.
- Citation
- [2021] KEHC 8707 (KLR)
- Parties
- Appellant: Concelia Ondiek; Respondent: Grace Achieng Otieno; Respondent: Wycliffe Otieno
- Court
- High Court
- Court Station
- High Court at Siaya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 20 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- RE Aburili
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Burial Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Concelia Ondiek
Appellant
Grace Achieng Otieno
Respondent
Wycliffe Otieno
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether costs should be awarded to any party given the nature of the dispute.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal since its admission for hearing and after the dismissal of an application for mandatory injunction. No record of appeal was filed or served, and the appellant had effectively abandoned the matter. Under Order 17 Rule 2 of the Civil Procedure Rules, the court has the authority to dismiss an appeal for want of prosecution. Given the prolonged inactivity and lack of diligence by the appellant, the court exercised its discretion to dismiss the appeal. Considering the dispute involved burial matters, the court ordered each party to bear their own costs.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
- Each party to bear their own costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT SIAYA
CIVIL APPEAL NO. 20 OF 2019
CONCELIA ONDIEK..............................................APPELLANT
VERSUS
GRACE ACHIENG OTIENO........................1ST RESPONDENT
WYCLIFFE OTIENO....................................2ND RESPONDENT
(An Appeal arising from RULING delivered on 27. 05. 2019 in Siaya PM’s Court Civil Suit No. 56 of 2019 by Hon. J.O. Ong’ondo, Principal Magistrate)
RULING
1. All parties were served with Notice of dismissal of this appeal under Order 17 Rule 2 of the Civil Procedure Rules. Only the 1st and 2nd Respondents’ counsel is present.
2. The last time the appeal was active was on 10/6/2019 and on 9/7/2019 the appeal was admitted to hearing.
3. The Appellant has never taken any steps to ready the appeal for hearing. No record of appeal is filed and served. In addition, since dismissal of an application for mandatory injunction on 1/7/2019, the appellant went to slumber.
4. This court cannot archive proceedings forever. Whoever comes before this court must be prepared to prosecute their cause.
5. For want of Prosecution of this appeal which was filed on 3/3/2019, this appeal be and is hereby dismissed for want of prosecution under Order 17 Rule 2 of the Civil Procedure Rules.
6. Each party to bear their own costs of this appeal as dismissed, considering the nature of the dispute being a burial dispute.
7. This file is closed.
8. Proceedings to be typed up to date.
9. Orders accordingly.
Dated, signed and Delivered at Siaya this 3rd Day of March, 2021
R.E. ABURILI
JUDGE