[2018] KEELC 270 (KLR)
The court found that the appellant had failed to prosecute the appeal since its filing in 2013 and had not complied with a consent order granting 60 days to file and serve the record of appeal. No explanation was provided for this non-compliance, and the appellant's counsel did not attend the hearing of the...
Source-derived case information.
- Citation
- [2018] KEELC 270 (KLR)
- Parties
- Appellant: Francis Muraya Theuri; Respondent: Monica Wangu Wamwere
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 247 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Record of Appeal, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Francis Muraya Theuri
Appellant
Monica Wangu Wamwere
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 under Order 42 rule 35(1) of the Civil Procedure Rules.
- 2 Whether the appellant provided sufficient explanation for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had failed to prosecute the appeal since its filing in 2013 and had not complied with a consent order granting 60 days to file and serve the record of appeal. No explanation was provided for this non-compliance, and the appellant's counsel did not attend the hearing of the application for dismissal. The court held that the delay was inordinate and indicative of a lack of interest in pursuing the appeal. Consequently, the appeal was dismissed for want of prosecution pursuant to Order 42 rule 35(1) of the Civil Procedure Rules, and costs were awarded to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs of both the application and the appeal are awarded to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
ENVIRONMENT AND LAND COURT AT NAKURU
CASE No. 247 OF 2017
(FORMERLY HCA No. 78 OF 2013)
FRANCIS MURAYA THEURI ......................................APPELLANT
VERSUS
MONICA WANGU WAMWERE................................RESPONDENT
RULING
1. By Chamber Summons dated 17th August 2016, the respondent sought dismissal of the appeal herein for want of prosecution. The application was brought under Order 42 rule 35 (1) of the Civil Procedure Rules and was supported by an affidavit sworn by the respondent. She deposed that after filing the appeal herein on 3rd June 2013, the appellant has not taken any step to prosecute the appeal.
2. The appellant opposed the application through a replying affidavit sworn by Raymond Kiprop Kipkenei, advocate. He deposed that it has not been possible to prosecute the appeal since typed proceedings have not been availed despite the appellant seeking them through letter dated 27th May 2013 and through a reminder dated 14th September 2016. He added that injustice will be occasioned to the appellant if the orders sought are granted.
3. I have considered the application and the affidavits filed. Order 42 rule 35(1) of the Civil Procedure Rules provides as follows:
Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
4. The record herein shows that the Memorandum of Appeal was filed on 3rd June 2013 as High Court Civil Appeal No. 78 of 2013. The matter was later transferred to this court. Since its filing, the appeal has not been prosecuted. On 27th October 2016, counsels for both the appellant and the respondent appeared before my sister Mulwa J. and recorded a consent pursuant to which the appellant was granted 60 days within which to file record of appeal and serve it upon the respondent. The consent was recorded after the present application had been filed. The appellant was fully aware of the threat of dismissal of the appeal for want of prosecution that was looming large.
5. No record of appeal has so far been filed and no explanation has been offered as to why the consent has not been complied with. I further note that despite being served, counsel for the appellant did not attend the hearing of the present application.
6. In view of the foregoing, I am persuaded that the appellant is not keen on having the appeal heard and determined. The delay herein is inordinate. I therefore dismiss the appeal herein for want of prosecution. Costs of both the application and the appeal are awarded to the respondent in the appeal.
Dated, signed and delivered in open court at Nakuru this 18th day of December 2018.
D. O. OHUNGO
JUDGE
In the presence of:
Ms Alwala holding brief for Mr Kibet for the respondent/applicant
No appearance for the appellant/respondent
Court Assistants: Gichaba & Lotkomoi