[2008] KEHC 3091 (KLR)
The court found that although there had been significant delay in prosecuting the appeal, the appellant had provided credible and sufficient reasons for the delay, including serious illness and personal misfortune. The court accepted the medical evidence and documentation provided, and determined that the delay was...
Source-derived case information.
- Citation
- [2008] KEHC 3091 (KLR)
- Parties
- Appellant: Francis Muchai Gakungi; Respondent: Joyce Wacuka; Respondent: Aloise Githae; Respondent: Mariko Ngunju; Respondent: Mukungo Njoka; Respondent: Joseph Kariru (for and on behalf of Munyaka tea Buying Centre members)
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2002
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed with costs to respondents; appellant to set down appeal for hearing within 30 days
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Muchai Gakungi
Appellant
Joyce Wacuka
Respondent
Aloise Githae
Respondent
Mariko Ngunju
Respondent
Mukungo Njoka
Respondent
Joseph Kariru (for and on behalf of Munyaka tea Buying Centre members)
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant in setting down the appeal for hearing.
- 2 Whether the reasons advanced by the appellant for the delay are sufficient to excuse the delay.
Ratio Decidendi
The court found that although there had been significant delay in prosecuting the appeal, the appellant had provided credible and sufficient reasons for the delay, including serious illness and personal misfortune. The court accepted the medical evidence and documentation provided, and determined that the delay was not due to willful neglect or disregard of the appeal. The court held that, in the circumstances, the interests of justice required that the appeal not be dismissed for want of prosecution. However, the respondents were entitled to costs occasioned by the application, and the appellant was directed to set down the appeal for hearing within 30 days.
Court Disposition
application dismissed with costs to respondents; appellant to set down appeal for hearing within 30 days
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- The appellant shall set down the appeal for hearing within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
Civil Appeal 59 of2002
FRANCIS MUCHAI GAKUNGI………………..................................................................……..APPELLANT
VERSUS
JOYCE WACUKA…….........................................................…………………………….1ST RESPONDENT
ALOISE GITHAE…………….........................................................………………………2ND RESPONDENT
MARIKO NGUNJU………...........................................................…………………………3RD RESPONDENT
MUKUNGO NJOKA……............................................................…………………………..4TH RESPONDENT
JOSEPH KARIRU(for and on behalf of Munyaka tea Buying Centre members)..5TH RESPONDENT
RULING
Application dated 26/7/2005 was made by the five Respondents in this appeal. The orders sought was that the appeal be dismissed for want of prosecution. The appeal was filed on 17/12/2002 and directions give on 8/10/2003 and yet the appeal has never been set down for hearing. The applicant’s hold Judgment in the lower court suit against the Appellant. And for the period from 8/10/2003 to the 27/7/2005 no action has been taken to set down the appeal for hearing. The Respondent/Appellant has given reasons why his appeal has not been set down for hearing citing several personal incidents of misfortune that had befallen him since the filing of the appeal and up to April 2006 he was bedridden walking with clutches Appellants advocates M/s Wairimu Mubari has also filed a Replying Affidavit in addition to that of her client. She swore that the Appellant came to her office on 19. 5.2006 almost one year since the filing of this application. However the application was set down for hearing on 29/5/2006. But due to failure of the Counsel the application was dismissed. Let it be noted that the said dismissal was set aside before this application was argued. The Appellant in this application has exhibited several documents to prove the fact of the illness of his late wife. It is clear that the Appellant was very distressed during the period of the illness of his wife and her subsequent demise. There is also medical evidence that the Appellant was suffering illness. This also must have occasioned heavy expenses. The Judgment against the Appellant is Shs.440,000/= and this is a large sum of money. The Appellant could not have ignored to prosecute appeal at all.
Upon considering arguments by both counsel it is clear that there has been much delay in prosecuting this appeal. However I find the appellant was confronted by other extraordinary problems which cannot be ignored in considering the delay complained of. I therefore accept the reasons given for delay. I dismiss the application but grant all costs occasioned to the Applicant/Respondents. The appellant shall set down the appeal for hearing within the next 30 days from today.
Dated this 16th January, 2008.
J. N. KHAMINWA
JUDGE
16/1/2008
Khaminwa – Judge
Njue – Clerk
Mr. Kathungu for Wairimu
Read in open court.
J. N. KHAMINWA
JUDGE