[2012] KEHC 1342 (KLR)
The court found that the appellant had not provided sufficient documentary proof of ill health nor explored available legal avenues for indigent litigants. However, exercising judicial discretion, the court granted the appellant a final opportunity to prosecute the appeal within six months from the date of the...
Source-derived case information.
- Citation
- [2012] KEHC 1342 (KLR)
- Parties
- Appellant: Francis Mungai; Respondent: William Muganda
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 301 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Conditional extension granted; appeal to be prosecuted within six months or stand dismissed.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Court Discretion, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Mungai
Appellant
William Muganda
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order 42 Rule 35 (2) of the Civil Procedure Rules.
- 2 Whether the appellant has provided sufficient cause for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not provided sufficient documentary proof of ill health nor explored available legal avenues for indigent litigants. However, exercising judicial discretion, the court granted the appellant a final opportunity to prosecute the appeal within six months from the date of the ruling. Failure to do so would result in automatic dismissal of the appeal. The court also ordered the appellant to bear the costs of the Notice to Show Cause.
Court Disposition
Conditional extension granted; appeal to be prosecuted within six months or stand dismissed.
Orders
- The appeal shall be set down for hearing within six months from the date of this ruling, failing which it will stand dismissed.
- The appellant shall bear the costs of the Notice to Show Cause.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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FRANCIS MUNGAI ….......................................................... APPELLANT
VERSUS
WILLIAM MUGANDA ...................................................... RESPONDENT
RULING
This appeal was filed on 24/11/2010. For the last 2 years no steps have been taken towards its prosecution. The court issued a Notice to Show Cause why the appeal cannot be dismissed pursuant to Order 42 Rule 35 (2) of the Civil Procedure Rules. Upon service of the Notice to Show Cause, counsel for the appellant, Mr. Githiru, filed a replying affidavit. He stated that since January 2010, the appellant has been suffering from undiagnosed chronic illness which has rendered him completely bedridden and incapable of giving proper instructions on the prosecution of this appeal. He further deponed that the appellant lost his only source of income and this made it impossible for him to give instructions and pay the requisite legal charges and disbursements. However the appellant is still willing to prosecute this appeal.
I have considered the replying affidavit of Mr. Githiru. I note that the deponent has not exhibited proof of the ill health of the appellant. There are also established procedure for litigants who can not meet the cost of litigation. Mr. Githiru has not explored those avenues or at least advised his client on the same. In the affidavit, he has requested the court for 60 days to prosecute this appeal. He has however not indicated whether the appellant has recovered to be able to issue instructions to the advocate and where he will obtain the required finances. Despite these discrepancies, this court will exercise its discretion in the appellant's favour and order that this matter be set down for hearing within the next 6 months from today's date, failing which the appeal will stand dismissed.
The appellant to bear costs of the Notice to Show Cause.
DATED and DELIVERED this 31st day of October, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Simiyu holding brief for Mr. Githiru for the appellant
N/A for the respondent
Kennedy – Court Clerk