[2016] KEHC 7081 (KLR)
The court found that the appellant, through their advocate, failed to file written submissions despite several reminders and adjournments. This conduct was deemed as non-prosecution of the appeal, akin to non-attendance at the hearing as described under Order 42 rule 20(1) of the Civil Procedure Rules. The court...
Source-derived case information.
- Citation
- [2016] KEHC 7081 (KLR)
- Parties
- Appellant: E A A (Minor suing through mother and next friend) S A A; Respondent: Samwel Otieno
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 68 of 2014
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed for want of prosecution with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Appeal Dismissal, Non Prosecution, Written Submissions, Order 42 Rule 20
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
E A A (Minor suing through mother and next friend) S A A
Appellant
Samwel Otieno
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the appellant's failure to file written submissions constitutes non-prosecution of the appeal.
- 2 Whether the court should dismiss the appeal for want of prosecution under Order 42 rule 20(1) of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appellant, through their advocate, failed to file written submissions despite several reminders and adjournments. This conduct was deemed as non-prosecution of the appeal, akin to non-attendance at the hearing as described under Order 42 rule 20(1) of the Civil Procedure Rules. The court exercised its discretion to dismiss the appeal for want of prosecution, concluding that the appellant was no longer interested in pursuing the appeal. Costs were awarded to the respondent.
Court Disposition
appeal dismissed for want of prosecution with costs to the respondent
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL APPEAL NO. 68 OF 2014
E A A (Minor suing through mother and next friend)
S A A ….......................................................... APPELLANT
VERSUS
SAMWEL OTIENO …........................................RESPONDENT
Being an appeal against the whole of judgment by Hon. A.A. Odawo RM delivered on 6/06/2014 in KISUMU CMCC No. 427 of 2011
BETWEEN
E A A (Minor Suing through mother and next friend)
S A A ….................................................................. PLAINTIFF
VERSUS
SAMWEL OTIENO …........................................... DEFENDANT
JUDGMENT
The appellant's claim for compensation for injuries allegedly sustained in an accident said to have occurred on 19th July 2011 was dismissed by the Lower Court and being dissatisfied the appellant filed this appeal. The Memorandum of Appeal was filed on 18th June 2014 and was duly served, and on 19th January 2015 the appeal was admitted. It was thereafter fixed for directions whereupon on 27th July 2015 Counsels appearing for the parties agreed that the appeal would be canvassed by way of written submissions. Despite several adjournments the Advocate for the appellant has not filed submissions. Even when the Deputy Registrar sent a reminder on 2nd November 2015 only those of the Respondent were received even though the record shows that the Respondent had already filed earlier. To date no submissions have been received from the Appellant's advocate.
This would mean that the appellant has not prosecuted the appeal. It is also akin to what Order 42 rule 20(1) of the Civil Procedure Rules describes as non-attendance of the appellant at the hearing of the appeal. The rule gives the Court power to dismiss the appeal in such circumstances. Here we have an appellant whose Advocate has been reminded by the Court to file submissions but has persisted in neglect to do so. This Court therefore takes it that the appellant is no longer interested in prosecuting the appeal and dismisses it with costs to the Respondent.
It is so ordered.
E. N. MAINA
JUDGE
Signed, dated and delivered this 28th day of January 2016
In the presence of:-
Miss Mwalo for Ouma for Appellant
N/A for the Respondent
CC: Felix