[2018] KEHC 4059 (KLR)
The court found that the appellant had provided a satisfactory explanation for the delay in prosecuting the appeal, namely the unavailability of the lower court file and the lack of notification regarding the admission of the appeal. The appellant demonstrated diligence by applying for proceedings, following up with...
Source-derived case information.
- Citation
- [2018] KEHC 4059 (KLR)
- Parties
- Appellant: Evans Mogusu Ondwari; Respondent: Dabasia Building Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 521 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause Regarding Delay in Prosecution
- Outcome
- appeal not dismissed; appellant granted leave to prosecute within 90 days
- Judges
- LM Njuguna
- Legal Topics
- Appeal Delay, Dismissal for Want of Prosecution, Record of Appeal Filing, Court Directions, Excusable Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Evans Mogusu Ondwari
Appellant
Dabasia Building Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause Regarding Delay in Prosecution
Legal Issues
- 1 Whether the delay in prosecuting the appeal was inordinate and inexcusable.
- 2 Whether the appeal should be dismissed for want of prosecution or allowed to proceed on its merits.
Ratio Decidendi
The court found that the appellant had provided a satisfactory explanation for the delay in prosecuting the appeal, namely the unavailability of the lower court file and the lack of notification regarding the admission of the appeal. The appellant demonstrated diligence by applying for proceedings, following up with the court, and filing the record of appeal once the necessary documents were obtained. The court determined that the delay was not due to indolence or lack of interest, but rather factors beyond the appellant's control. In the interests of justice and to allow the matter to be heard on its merits, the court declined to dismiss the appeal but imposed a strict timeline for its...
Court Disposition
appeal not dismissed; appellant granted leave to prosecute within 90 days
Orders
- The appeal shall be prosecuted within 90 days from the date of this ruling.
- If the appeal is not prosecuted within 90 days, it shall stand dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 521 OF 2013
EVANS MOGUSU ONDWARI..................................................................APPELLANT
VERSUS
DABASIA BUILDING LIMITED..........................................................RESPONDENT
(Appeal from the judgment of Honourable Mr. P.Nditika, Senior Principal Magistrate at Milimani delivered on 30th July, 2013 in CMCC No. 13247 of 2006)
RULING
The matter herein was listed for notice to show cause, on the 27th day of July 2018. In response to the same, counsel for the Appellant filed a replying affidavit, explaining the delay in prosecuting the same.
The reasons given for the delay are that the Lower court file was missing for sometime as a result of which he was not able to obtain the proceedings on time. He has annexed the letters that he wrote to the Executive Officer enquiring about the file and the proceedings.
That upon receipt of the proceedings, he proceeded to file a record of Appeal on the 25th August, 2015 and on the 10th September, 2015, he wrote a letter requesting the executive officer to list the Appeal for directions (A copy of that letter is annexed and marked KM 4). The said letter was not responded to and the Appeal has never been listed for directions.
It is averred that the delay is excusable and the same was due to factors beyond his control. That the Appeal has high chances of success and dismissing it at this stage would highly prejudice the appellant. He has urged the court to allow him to prosecute the Appeal on merits.
The court has considered the affidavit and the reasons given for the delay in prosecuting the Appeal. I have also perused the record of the court. Judgment in the matter that gave rise to this Appeal was delivered on the 18th September, 2013. The Appellant filed the Appeal on the 4th October, 2013. The proceedings were applied for on 10th October, 2013. The Appellant depones that he obtained certified copies of the proceedings on 10th April 2014 following which he complied and filed a record of Appeal on the 25th August, 2015.
The record shows that the Lower court file was forwarded to this court vide a letter dated 29th May, 2014 following which the Appeal was admitted on the 19th October, 2015. It would appear that counsel for the Appellant was not notified of the admission of the Appeal to enable him list it for directions.
From the foregoing, it cannot be said that the Appellant has been indolent in prosecuting the Appeal. Having filed the record of Appeal, the Appeal is ready for hearing save for the directions. In view of the aforegoing, the court will not dismiss the Appeal but since it’s an old matter, it is hereby ordered that, it be prosecuted within 90 days from the date of this ruling, failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 27thday of September, 2018
…………………………..
L. NJUGUNA
JUDGE
In the presence of:
…………………………….. For the Appellant
……………………………… For the Respondents