[2004] KEHC 2510 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for over a year after its reinstatement and had not provided credible evidence or a satisfactory explanation for the delay. The excuse that the lower court file was missing was unsupported by evidence. Furthermore, the court...
Source-derived case information.
- Citation
- [2004] KEHC 2510 (KLR)
- Parties
- Appellant: Esther Waithira Kariuki; Respondent: Samuel Muhari Gathecha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 169 of 1995
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- ARM Visram
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Reinstatement, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Esther Waithira Kariuki
Appellant
Samuel Muhari Gathecha
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the appellant has provided sufficient cause for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for over a year after its reinstatement and had not provided credible evidence or a satisfactory explanation for the delay. The excuse that the lower court file was missing was unsupported by evidence. Furthermore, the court noted that the lower court's judgment had already been executed before the appeal was reinstated, rendering the appeal academic. In the interest of finality in litigation and in the absence of good cause for the delay, the court allowed the application and dismissed the appeal for want of prosecution with costs to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The application dated 7th April, 2004 is allowed.
- The appeal is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
8 paragraphs
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 169 OF 1995 ESTHER WAITHIRA KARIUKI ……………...………… APPELLANT VERSUS SAMUEL MUHARI GATHECHA ……………..……… RESPONDENT RULING
This is an application for the dismissal of this appeal for want of prosecution.
The appeal was filed in May 1995, and was dismissed for want of prosecution in February 2002. It was reinstated on July 3, 2003, and again one year having elapsed, the Appellant has taken no steps to prosecute the appeal. His excuse for not taking any steps is that the lower court file was missing. There is no such evidence exhibited, and there is no good reason shown why this Court should once again, for a second time, allow the Appellant prosecute his appeal. In any event, as the Respondent has deponed, this appeal has been overtaken by events. The lower court’s Judgment had already been executed before the appeal was reinstated last year.
This litigation must now end. The application dated 7th day of April, 2004 is allowed and this appeal is dismissed for want of prosecution with costs to the Applicant/Respondent.
Dated and delivered at Nairobi this 13th day of July, 2004.
ALNASHIR VISRAM JUDGE