[2012] KEHC 1220 (KLR)
The court found that although the appellant failed to attend a meeting to fix the hearing date, the respondent's representative was informed by the court registry that the 2012 diary was closed and no dates were available. The court exercised its discretion in favour of the appellant, granting a further six months...
Source-derived case information.
- Citation
- [2012] KEHC 1220 (KLR)
- Parties
- Appellant: Delamere Estates Limited; Respondent: G4S Security Services Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 185 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Appeal not dismissed; extension of time granted with conditions.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Extension of Time, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Delamere Estates Limited
Appellant
G4S Security Services Limited
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 has provided sufficient cause for the delay in prosecuting the appeal.
- 3 Whether the court should exercise its discretion to grant an extension of time for hearing.
Ratio Decidendi
The court found that although the appellant failed to attend a meeting to fix the hearing date, the respondent's representative was informed by the court registry that the 2012 diary was closed and no dates were available. The court exercised its discretion in favour of the appellant, granting a further six months for the matter to be set down for hearing. Failure to do so would result in automatic dismissal of the appeal. The appellant was ordered to bear the costs of the appeal and the notice to show cause.
Court Disposition
Appeal not dismissed; extension of time granted with conditions.
Orders
- The appeal to be set down for hearing within six months from the date of the ruling, failing which it will stand dismissed.
- The appellant to bear the costs of the appeal and the notice to show cause.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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DELAMERE ESTATES LIMITED ….................................... PLAINTIFF
VERSUS
G4S SECURITY SERVICES LIMITED ............................. DEFENDANT
RULING
This appeal was filed on 25/10/2007. Directions were taken on 17/03/09. Since then no steps have been taken towards its prosecution for the last 1 ½ years. The court issued a Notice to Show Cause why the appeal cannot be dismissed for want of prosecution. Upon service of the Notice to Show Cause, counsel for the appellant, Mr. Kamonjo Kiburi, filed a replying affidavit. He stated that on 18/4/2012 they set out efforts to fix the matter for hearing but were advised by the court registry that there were no dates available for the year 2012.
Mr. Chege, counsel for the respondent in opposing the extension of time, submitted that they had been trying to get a date at the registry and invited the appellant's firm of advocates but they did not turn up; they have not been following up with this matter.
I have considered the replying affidavit and oral submissions by Mr. Kiburi and Mr. Chege. Mr. Kiburi has exhibited an invitation letter to fix the matter for hearing. I however note that the letter is drawn by the respondent's firm of advocates. Despite having been served with the letter, neither the appellant nor his representative turned up. I however take note that the respondent's representative were advised that the 2012 diary was closed and therefore could not have fixed the matter for hearing. The court will therefore exercise its discretion in the appellant's favour and order that this matter be set down for hearing within the next 6 months from today's date, failing which the appeal will stand dismissed.
The appellant to bear costs of the appeal and the Notice Show Cause.
Dated and delivered this day 12th October 2012
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Chege holding brief for Mr. Ngawa for the respondent
Mr. Muchela holding brief for Mr. Kiburi for applicant
Kennedy – Court Clerk