[2012] KEHC 2438 (KLR)
The court found that the appellant had not demonstrated diligence in prosecuting the appeal, as there was no evidence of sustained effort to obtain the lower court proceedings or judgment for over three years. The court noted that even after being granted additional time to file a replying affidavit, the appellant's...
Source-derived case information.
- Citation
- [2012] KEHC 2438 (KLR)
- Parties
- Appellant: Daniel Karari; Respondent: Bigot Flowers (K) Ltd
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 101 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Daniel Karari
Appellant
Bigot Flowers (K) Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the appellant demonstrated sufficient diligence or justification for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not demonstrated diligence in prosecuting the appeal, as there was no evidence of sustained effort to obtain the lower court proceedings or judgment for over three years. The court noted that even after being granted additional time to file a replying affidavit, the appellant's counsel made no further effort to procure the necessary documents. The absence of proof of payment for the proceedings and the prolonged inaction led the court to conclude that the appellant had not justified the delay. Consequently, the appeal was dismissed for want of prosecution, with costs awarded to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is hereby dismissed for want of prosecution.
- Costs to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA ATNAKURU
CIVIL APPEAL 101 OF 2008
DANIEL KARARI……………….………........................……..…..…APPELLANT
VERSUS
BIGOT FLOWERS (K) LTD…………….…..….........................…RESPONDENT
RULING
This appeal was filed on 12/6/2009. Since then the appellant has not taken any steps towards its prosecution. On 14/9/2011, the Deputy Registrar issued a Notice to the appellant to show cause why the appeal cannot be dismissed for want of prosecution pursuant to Order 42 Rule 35(2) of the Civil Procedure Rules 2010. George Gisore Mboga, counsel for the appellant has filed a replying affidavit urging the court not to dismiss the appeal because the efforts to prosecute the appeal have been frustrated by the Registry of the Lower Court as they have refused to supply him with a copy of the judgment and proceedings; that on 20/11/08, the applicant paid a deposit for the proceedings (GGM2) and despite request for copies of the proceedings and judgment, none have been supplied and that in the interest of justice, the appeal should not be dismissed.
Ms Wanjiru, counsel for the respondent urged the court to dismiss the appeal.
After the appeal was filed, the appellant’s counsel addressed the letter dated 18/7/2008 requesting for proceedings. Since then it is over 3 years since any effort was made to remind the court of the request for proceedings. Though the counsel indicated that they paid a deposit for the proceedings, there was no such evidence. Besides even if it was due it was in 2008 and it is over 3 years since the payment.
When this Notice To Show Cause came up for hearing on 18/10/2011, the appellant’s counsel was given till 17/11/2011 to file a replying affidavit. Even within that period the appellant’s counsel never made any effort towards procuring the typed proceedings and judgment. The appellant has not been diligent and so far, it has not been demonstrated that any effort has been made to have the appeal prosecuted. For that reason the appeal is hereby dismissed for want of prosecution. Costs to the respondent.
DATED and DELIVERED this 20th day of July, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the appellant.
Ms Wanjiru for the respondent.
Kennedy – Court Clerk.