[2020] KEHC 4359 (KLR)
The court found that the applicant had failed to comply with the terms of the consent order, specifically by not depositing the decretal sum and not filing the Record of Appeal within the stipulated time. Despite being given multiple opportunities and extensions, the applicant did not take the necessary steps to...
Source-derived case information.
- Citation
- [2020] KEHC 4359 (KLR)
- Parties
- Applicant: Erick Kombo Moseti; Respondent: Samwel Bosire Angwenyi & Obwocha Abraham Momanyi [Suing for and on behalf of Keroka Riverside Self Help Group]
- Court
- High Court
- Court Station
- High Court at Nyamira
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Reinstate Dismissed Appeal and Stay Execution
- Outcome
- application dismissed with costs to the respondent
- Judges
- EM Muchoki
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Stay of Execution, Consent Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Erick Kombo Moseti
Applicant
Samwel Bosire Angwenyi & Obwocha Abraham Momanyi [Suing for and on behalf of Keroka Riverside Self Help Group]
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Reinstate Dismissed Appeal and Stay Execution
Legal Issues
- 1 Whether the appeal dismissed for want of prosecution should be reinstated.
- 2 Whether the applicant is entitled to a stay of execution of the lower court's decree.
- 3 Whether the proceedings of 2nd March 2020 should be set aside and the application reinstated.
Ratio Decidendi
The court found that the applicant had failed to comply with the terms of the consent order, specifically by not depositing the decretal sum and not filing the Record of Appeal within the stipulated time. Despite being given multiple opportunities and extensions, the applicant did not take the necessary steps to prosecute the appeal or to set aside the consent order. The court noted that the applicant and his counsel were repeatedly absent or non-compliant with court directions, and that nearly a year had passed since the appeal was lodged without substantive progress. The court concluded that there was no merit in the application for reinstatement, that the application constituted an...
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 2nd March 2020 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NYAMIRA
CIVIL APPEAL NO. 42 OF 2019
ERICK KOMBO MOSETI............................................................................APPLICANT
- VRS-
SAMWEL BOSIRE ANGWENYI & OBWOCHA ABRAHAM MOMANYI[Suingfor
and on behalf of KEROKA RIVERSIDE SELF HELP GROUP].......RESPONDENTS
RULING
Before me is the Notice of Motion dated 2nd March 2020 which seeks orders as follows: -
“(a) THAT the application herein be certified as urgent and be heard ex-parte in the 1st instance
(b) THAT the honourable court be pleased to re-admit the appeal dismissed for default.
(c) THAT the honourable court be pleased to vary and set aside the proceedings of the 2nd day of March 2020 and re-instate the application dated the 18th February 2020 for inter-parties hearing.
(d) THAT the court be pleased to order for stay of execution of the decree and or any other consequential order emanating from KEROKA PMCC NO. 353 OF 2010 till the hearing and determination of this application.
(e) THAT the cost of the application be provided for.”
The application was canvassed by way of written submissions and the same have been considered fully. I am however not persuaded that the application has merit. The applicant’s appeal was first admitted on 27th June 2019 upon a consent between the advocates for the parties. By that consent a stay of execution of the decree of lower court was granted upon the condition that the appellant would deposit the entire decretal sum either in an interest earning account in the joint names of the advocates or in court within thirty days. It was also agreed that the Record of Appeal would be filed and served within thirty days of the date the consent was recorded. The consent was recorded pursuant to a Notice of Motion filed by Counsel for the appellant on 19th June 2019. After recording the consent this court fixed the appeal for directions on 25th July 2019 but come that day Counsel for the appellant did not attend and the appellant who was personally in court indicated he had not given the Advocate instructions to enter into a consent. This court therefore vacated the order for stay of execution arising from the consent and granted the appellant the time he craved to retain another advocate. This was in lieu of striking out his application dated 19th June 2019. The court then fixed the appeal for further directions on 19th September 2019 but the appellant did not attend although the date had been fixed in his presence. This court did not dismiss the appeal. Instead it fixed it for further mention on 17th October 2019 on which date only Counsel for the respondent attended. This despite the fact that both sides had been served with a notice by the court. Nevertheless, once again this court declined an invitation by Counsel for the respondent to strike out the appeal for want of prosecution and fixed it for further mention on 17th November 2019. Counsel for the appellant attended and asked for more time to file the Record of Appeal. This court gave him seven (7) days to do so and fixed the appeal for directions on 14th November 2019 but come that date there was no attendance by either side and as the Record of Appeal had not been filed this court dismissed the appeal for want of prosecution. To-date close to one year since the appeal was lodged, the Record of Appeal has not been filed and neither has the decretal sum been deposited and the applicant has not taken any steps to set aside the consent. I find no merit in this application. It is an abuse of the court process. The same is dismissed with costs to the respondent. It is so ordered.
Signed, dated and delivered in Nyamira this 9th day of July 2020.
E. N. MAINA
JUDGE
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