[2019] KEHC 4963 (KLR)
The court found that the delay in prosecuting the appeal was not due to any fault or inaction on the part of the appellant, but rather resulted from the failure of the lower court to supply the necessary record and proceedings. Since the procedural steps required for dismissal under Order 42 Rule 35(1) had not been...
Source-derived case information.
- Citation
- [2019] KEHC 4963 (KLR)
- Parties
- Appellant: Edna Bosibori Arati t/a Sandy Beaches Safaris & Logistics; Respondent: La Mada Hotels Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 324 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Edna Bosibori Arati t/a Sandy Beaches Safaris & Logistics
Appellant
La Mada Hotels Limited
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 delay in filing the record of appeal.
- 2 Whether the delay in prosecution is attributable to the appellant or systemic shortcomings of the court.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not due to any fault or inaction on the part of the appellant, but rather resulted from the failure of the lower court to supply the necessary record and proceedings. Since the procedural steps required for dismissal under Order 42 Rule 35(1) had not been completed, and the appellant had made efforts to obtain the record, it would be unjust to dismiss the appeal. The court emphasized that dismissing the appeal would unfairly deprive the appellant of the right to be heard due to institutional shortcomings beyond their control.
Court Disposition
application dismissed
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- The Deputy Registrar shall ensure that the lower court record is availed to the appellant within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 324 OF 2013
EDNA BOSIBORI ARATIT/A
SANDY BEACHES SAFARIS &LOGISTICS.....APPELLANT/RESPONDENT
VERSUS
LA MADA HOTELS LIMITED.............................RESPONDENT/APPLICANT
RULING
This ruling relates to an application dated 22nd August, 2018 seeking the dismissal of the appeal for want of prosecution. The appellant field a Memorandum of Appeal on 10th June, 2013 following judgment of the lower court delivered on 10th May, 2013. The said Memorandum of Appeal was filed within time required to do so under the Civil Procedure Rules.
The record shows that the Civil Appeals registry requested for the lower court record soon after the filing of the Memorandum of Appeal followed by a reminder but to date that record has not been received.
There is also no reply by the court to the advocates for the appellant following a request for proceedings. I have looked at the cited provisions of law, the affidavits and rival submissions by the parties.
Order 17 of the Civil Procedure Rules cited by the respondent is not applicable. Order 42 Rule 35 (1) is the one that applies to such applications. However, those provisions come into play after compliance with Section 79B related to admission of appeals and Section 79C relating to giving directions as to the hearing of the appeal.
Those steps have not been taken for the reason that the lower court record has not been submitted. The appellant in my view is a victim of systemic shortcomings of the institution rather than deliberate action on its part.
To dismiss the appeal is a drastic measure, the result of which shall drive out a party from the seat of justice without a hearing. I hesitate to grant the orders sought for the main reason that the appellant is not to blame for the delay in the prosecution of this appeal. The application is therefore dismissed.
I direct that the Deputy Registrar shall ensure that the lower court record is availed to the appellant within 30 days from the date of this ruling. Thereafter the appellant shall file the record of appeal within 30 days. The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 4th Day of June, 2019.
A.MBOGHOLI MSAGHA
JUDGE