[2011] KEHC 3824 (KLR)
The court found that the delay in prosecuting the appeal was due to the inadvertence of the appellant's counsel, who failed to serve the extracted order on the court as required. The court accepted the explanation and, in the interests of justice, exercised its discretion to grant the appellant a further 45 days to...
Source-derived case information.
- Citation
- [2011] KEHC 3824 (KLR)
- Parties
- Appellant: Fred Kanyiri Kiragu; Respondent: Peter Linus Lempei
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 137 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appellant granted 45 days to prepare, admit, and fix the appeal for hearing; failure to comply will result in dismissal. Costs to be borne by the appellant.
- 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
Fred Kanyiri Kiragu
Appellant
Peter Linus Lempei
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 due to inaction by the appellant.
- 2 Whether the appellant has provided sufficient cause for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was due to the inadvertence of the appellant's counsel, who failed to serve the extracted order on the court as required. The court accepted the explanation and, in the interests of justice, exercised its discretion to grant the appellant a further 45 days to prepare, admit, and fix the appeal for hearing. The court made it clear that failure to comply within this period would result in automatic dismissal of the appeal. Costs were awarded against the appellant.
Court Disposition
Appellant granted 45 days to prepare, admit, and fix the appeal for hearing; failure to comply will result in dismissal. Costs to be borne by the appellant.
Orders
- Appellant granted 45 days from the date of the ruling to prepare the record of appeal, have it admitted, and fix it for hearing.
- In default of compliance, the appeal will stand dismissed.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 137 OF 2007
FRED KANYIRI KIRAGU………………………....APPELLANT
VERSUS
PETER LINUS LEMPEI………………………….RESPONDENT
RULING
The Memorandum of Appeal herein was filed on 1st August 2007. Since then the appellant has not done anything towards prosecution of the appeal. The court issued a notice to show cause why the same should not be dismissed.
Counsel for the appellant filed a replying affidavit in which he deponed that he applied for proceedings and paid for the same, extracted the order and served it on 3rd September, 2007. But due to an error on his part, the order was never served on the court as required and the court could not therefore have invoked Order XLI Rule 1A Civil Procedure Rules.
Counsel has admitted that he is to blame for the delay in having this appeal prosecuted as he failed to take any steps due to inadvertence on his part. The court will therefore give the appellant another chance and allow him 45 days from today’s date, within which to prepare the record of appeal, have it admitted and have it fixed for hearing. In default, it will stand dismissed. Costs be borne by the appellant.
DATEDand DELIVERED this 14th day of February 2011.
R. P. V. WENDOH JUDGE
PRESENT No appearance for Appellant No appearance for Respondent Ken Oguma – Court Clerk
Court: Counsels to be notified of court’s ruling.