[2012] KEHC 1343 (KLR)
The court found that the delay in prosecuting the appeal was not occasioned by the appellant but was due to the unavailability of the lower court file, which was necessary for preparing the record of appeal. The appellant had made reasonable efforts through her advocates to obtain the file, as evidenced by...
Source-derived case information.
- Citation
- [2012] KEHC 1343 (KLR)
- Parties
- Appellant: Emily Mkanga; Respondent: John Chege Njoroge; Respondent: Samuel Kamau Gikonyo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 246 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Conditional continuation of appeal; not dismissed at this stage.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Emily Mkanga
Appellant
John Chege Njoroge
Respondent
Samuel Kamau Gikonyo
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35(2) of the Civil Procedure Rules.
- 2 Whether the delay in prosecuting the appeal was occasioned by the appellant.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not occasioned by the appellant but was due to the unavailability of the lower court file, which was necessary for preparing the record of appeal. The appellant had made reasonable efforts through her advocates to obtain the file, as evidenced by correspondence with the Executive Officer. In the circumstances, it would be unjust to dismiss the appeal for want of prosecution. The court therefore directed the Executive Officer to avail the lower court file within 30 days and ordered the appellant to prepare the record and set the matter down for hearing within 120 days of receiving the file, failing which the appeal would stand...
Court Disposition
Conditional continuation of appeal; not dismissed at this stage.
Orders
- The Executive Officer is directed to avail to the appellant the lower court file no. 1762 of 2006 within 30 days from the date hereof.
- The appellant is to prepare the record and set down the matter for hearing within 120 days from the date the file is availed, failing which the appeal will stand dismissed.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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EMILY MKANGA ….............................................................. APPELLANT
VERSUS
JOHN CHEGE NJOROGE ........................................ 1ST RESPONDENT
SAMUEL KAMAU GIKONYO …............................... 2ND RESPONDENT
RULING
This appeal was filed on 8/9/2010. For the last 2 years no steps had taken towards its prosecution. The court issued a Notice to Show Cause why the appeal cannot be dismissed under Order 42 Rule 35 (2) of the Civil Procedure Rules. Upon service of the Notice to Show Cause, the appellant, Emily Mkanga, filed an affidavit. She stated that she instructed her advocates, Rodi Orege & Company Advocates to file the appeal. They so did, but advised her that the lower court file number 1762 of 2006 could not be traced. She exhibited letters drawn by her advocates to the Executive Officer of the court in attempt to have the file availed for purposes of obtaining typed proceedings. She deponed that she has not received any response from the Executive Officer and thus the reason for the delay in prosecuting the appeal.
I have considered the affidavit of Ms Emily Mkanga. I note that the delay has not be occasioned by the appellant. I therefore direct the Executive Officer to avail to the appellant the lower court file no. 1762 of 2006 within 30 days from the date hereof and the appellant to prepare the record and set down the matter for hearing within 120 days from the date the file is availed, failing which the appeal will stand dismissed.
The appellant to bear costs of the Notice to Show Cause.
DATED and DELIVERED this 31st day of October, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Simiyu holding brief for Mr. Rode for the appellant
N/A for the respondents
Kennedy – Court Clerk