[2016] KEHC 1133 (KLR)
The court found that the delay in prosecuting the appeal was not due to any indolence or inaction on the part of the appellant or its counsel. The appellant had made repeated written requests to the Deputy Registrar for directions and for the lower court record, which had not been availed due to systemic...
Source-derived case information.
- Citation
- [2016] KEHC 1133 (KLR)
- Parties
- Appellant: Gateway Insurance Co. Ltd; Respondent: Japheth Aritho Kinyua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 29 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Gateway Insurance Co. Ltd
Appellant
Japheth Aritho Kinyua
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in obtaining the lower court record.
- 2 Whether the delay in prosecuting the appeal is attributable to the appellant or to systemic shortcomings within the court.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not due to any indolence or inaction on the part of the appellant or its counsel. The appellant had made repeated written requests to the Deputy Registrar for directions and for the lower court record, which had not been availed due to systemic shortcomings within the court system. As such, the court held that it would be unjust to dismiss the appeal for want of prosecution in these circumstances. The application for dismissal was therefore dismissed, and the Deputy Registrar was directed to facilitate the availability of the lower court file within 14 days and set a mention date to confirm the position, with notice to both...
Court Disposition
application dismissed
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- The Deputy Registrar shall within 14 days of this ruling facilitate the availability of the lower court file and set a date for mention to confirm the position with notice to both counsel.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 29 OF 2012
GATEWAY INSURANCE CO. LTD....................................APPELLANT
VERSUS
JAPHETH ARITHO KINYUA.........................................RESPODNENT
RULING
The appellant was the defendant in the lower court while the respondent was the plaintiff. Judgment was given in favour of the respondent herein following a claim based on the loss of the respondent’s motor vehicle which was alleged to have been stolen. The appellant was aggrieved by the said judgment and lodged an appeal.
Going by the material before me, the record of appeal has been prepared but the original lower court file is not part of the record. The respondent has filed an application seeking an order that the appeal be dismissed for want of prosecution and that the decretal sum held in a joint account of the parties at Standard Chartered Bank Ltd be released to him. The reasons for the application are set out on the face of the application and the respondent has filed a supporting affidavit.
The application is opposed and there is a replying affidavit sworn by the counsel for the appellant alongside grounds of opposition. The application was argued by way of written submissions.
This court is alive to the provisions of Order 42 of the Civil Procedure Rules and in particular rules 12 and 35 thereof. On perusing the record before me I have come across 10 letters addressed to the deputy registrar by the council for the appellant inquiring or seeking dates for direction. The Deputy Registrar has also requested for the lower court record in vain. As at the time of arguing this application the lower court record had not been received. It clear that the delay in the prosecution of the appeal cannot be wholly attributed to the appellant and his counsel because what comes to light is evidence of systemic shortcomings within the court.
The appellant having written severally to the Deputy Registrar is a clear demonstration that no indolence can be attributed to it or its counsel. Having said so, this application must fail and is therefore dismissed. The Deputy Registrar shall within 14 days of this ruling facilitate the availability of lower court file and set a date for mention to confirm the position with notice to both counsel. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 27th Day of October, 2016.
A. MBOGHOLI MSAGHA
JUDGE