[2011] KEHC 2914 (KLR)
The court found that the reasons advanced by the appellant for the delay in prosecuting the appeal were not reasonable in the circumstances. The appellant failed to provide evidence of the alleged disappearance of the court file, such as a letter of complaint. Furthermore, the appeal was admitted to have been filed...
Source-derived case information.
- Citation
- [2011] KEHC 2914 (KLR)
- Parties
- Appellant: Ezekiel Amukongo; Respondent: Ramesh Patel t/a Lubao Jaggery Limited
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 123 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Enlargement of Time, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ezekiel Amukongo
Appellant
Ramesh Patel t/a Lubao Jaggery Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the reasons for delay in prosecuting the appeal are reasonable and excusable.
- 3 Whether the appeal was properly before the court, having been filed out of time.
Ratio Decidendi
The court found that the reasons advanced by the appellant for the delay in prosecuting the appeal were not reasonable in the circumstances. The appellant failed to provide evidence of the alleged disappearance of the court file, such as a letter of complaint. Furthermore, the appeal was admitted to have been filed out of time, meaning there was no proper appeal before the court. The combination of inordinate delay, lack of credible explanation, and procedural impropriety justified the dismissal of the appeal for want of prosecution.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KAKAMEGA
CIVIL APPEAL NO.123 OF 2003
EZEKIEL AMUKONGO .................................. PLAINTIFF/APPELLANT
V E R S U S
RAMESH PATEL
T/A LUBAO JAGGERY LIMITED ............. DEFENDANT/RESPONDENT
R U L I N G
1. This Appeal was filed on 16. 9.2003. On 28. 9.2004, G.B.M. Kariuki admitted it to hearing and on 2. 6.2004, a Notice of Motion for directions was filed and directions given on 24. 9.2004.
2. On 26. 8.2006, a Notice of Motion was filed seeking enlargement of time to institute the Appeal and in it, it was admitted that the Appeal was filed out of time. That Application was withdrawn on 13. 3.200.
3. The Appeal was then fixed for hearing on 23. 4.2008 but it was not heard and thereafter no action was taken until 28. 9.2010 when the Respondent filed an Application premised on the provisions of Order XVI Rule 5 of the Civil Procedure Rules seeking Orders that the suit be dismissed for want of prosecution. The grounds in support and which are duplicated in the Supporting Affidavit sworn on 27. 9.2010 by Simiyu Makokha, Advocate are that;
1. “That the plaintiff has failed neglected and or refused to set down this suit for hearing.
2. That it is now over 2 years since the case was last in court.
3. That the plaintiff’s failure to fix this suit for hearing clearly indicates that he is not willing and or interested in prosecuting this matter for hearing any further.
4. That for the plaintiff to let this suit lie in the court unprosecuted for over 2 years is a clear abuse of the due process.
5. That it is in the interest of justice that this suit should be dismissed for want of prosecution in order to bring the same to an end.”
4. In his Replying Affidavit sworn on 8. 2.2011, Michael Kiveu, Advocate deponed that whereas the delay was admitted, the reason why the Appeal was not prosecuted was because his office file got misplaced and it was only traced in December 2010. Further, that the court file had been misplaced and when it was traced, the present Application had already been filed.
5. In any event, that the mistake on his part should not be visited on his client.
6. I will accede to the Application because the reasons given for delay are not in the circumstances, reasonable. When did the file disappear and why would it take the filing of the Application to spur the Appellant’s Advocate to take action? Where is evidence that the court file had disappeared when no letter of complaint exists?
7. In any event, it is admitted that the Appeal was filed out of time so that, in fact, no proper Appeal is before the court and whatever is before court has been pending unheard for 8 years.
8. This is a fit case for dismissal of the Appeal for want of prosecution as prayed. Costs thereof to the Respondent.
9. Orders accordingly.
Delivered, dated and signed at Kakamega this 14th day of April, 2011
ISAAC LENAOLA
J U D G E