[2019] KEHC 9595 (KLR)
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal for over three years, including not filing a record of appeal. There was no evidence of any correspondence or follow-up regarding the alleged missing court file, nor any demonstration of genuine interest in pursuing...
Source-derived case information.
- Citation
- [2019] KEHC 9595 (KLR)
- Parties
- Appellant: Eastern Produce (K) Limited (Kibwari Tea Estate); Respondent: Beatrice Jumba Musembi
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 19 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Process, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eastern Produce (K) Limited (Kibwari Tea Estate)
Appellant
Beatrice Jumba Musembi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the appellant took reasonable steps to prosecute the appeal.
- 3 Whether the funds deposited in the joint advocates' account should be released.
Ratio Decidendi
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal for over three years, including not filing a record of appeal. There was no evidence of any correspondence or follow-up regarding the alleged missing court file, nor any demonstration of genuine interest in pursuing the appeal. The court held that equity does not aid the indolent and that the delay was inordinate and unexplained. Consequently, the application to dismiss the appeal for want of prosecution was merited and allowed.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed with costs to the applicant/respondent.
- Costs of the application shall be borne by the respondent/appellant.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
HIGH COURT CIVIL APPEAL NO.19 OF 2015
EASTERN PRODUCE (K) LIMITED (KIBWARI TEA ESTATE)....APPELLANT
- V E R S U S–
BEATRICE JUMBA MSEMBI.............................................................RESPONDENT
R U L I N G
1. By an application dated 24th September, 2018 supported by the Affidavit sworn by BEATRICE JUMBA MUSEMBI, this Court is asked to dismiss the Appeal filed herein by EASTERN PRODUCE (K) LIMITED – KIBWARI TEA ESTATE – Respondent, for want of prosecution. In the alternative that, consequential orders submitting, and adverse to the applicant herein, be discharged forthwith by ordering the release of the funds deposited in both Advocate’s joint interest earning bank account.
2. The basis for these prayers is that the Respondent filed a memorandum of appeal on 5th February, 2015 against the entire judgment and decision of the trial Court. However, the appeal has never been prosecuted in the last three years, which delay is described as inordinate. It is pointed out that not even a record of appeal has ever been prepared and/or filed.
The Respondent/Appellant in opposing the application states that for substantive justice to be achieved then the appeal ought to be determined on merit. Maintaining that after filing the memorandum of appeal, the Court file mysteriously disappeared, the Respondent’s urges this Court not to blame the Respondent/Appellant for facts which were beyond its control.
3. Although reference was made to a replying affidavit, there wasn’t a copy placed in the Court file. It is not clear to me which Court file has been missing – is it the Original Lower Court File or the High Court File. Had there been any correspondence made to the Court in writing regarding unavailability of the Court File? What follow-up has there been in the last 3 years to demonstrate a genuine interest in pursuing the Appeal. What step if any has the Appellant taken towards ensuring the matter moves from its state of dormancy. Even now, no record of appeal has been filed, and equity does not aid the indolent.
4. I hold and find that the application seeking to dismiss the appeal for want of prosecution is merited and is allowed.
The appeal filed herein be and is hereby dismissed with costs to the
Applicant/Respondent.
Costs of this application shall be borne by the Respondent/Appellant.
DELIVERED and DATED this 10th day of January 2019 at
ELDORET.
H. A. OMONDI
JUDGE