[2019] KEHC 5337 (KLR)
The court found that the appellant had failed to provide any proper, valid, or satisfactory explanation for the delay in prosecuting the appeal since its filing in November 2017. The court noted that previous indulgence had already been granted and that the appellant's continued inaction was a clear demonstration of...
Source-derived case information.
- Citation
- [2019] KEHC 5337 (KLR)
- Parties
- Appellant: George Omolo Odongo; Respondent: Oscar Otieno Odongo t/a Odongo Investment Auctioneers
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 29 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application allowed. Appeal dismissed for want of prosecution with costs to the applicant.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Omolo Odongo
Appellant
Oscar Otieno Odongo t/a Odongo Investment Auctioneers
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 inaction by the appellant.
- 2 Whether the appellant has provided sufficient grounds to justify the court's discretion to retain the appeal.
Ratio Decidendi
The court found that the appellant had failed to provide any proper, valid, or satisfactory explanation for the delay in prosecuting the appeal since its filing in November 2017. The court noted that previous indulgence had already been granted and that the appellant's continued inaction was a clear demonstration of lack of seriousness and an abuse of the court process. Consequently, the court exercised its discretion to allow the application and dismissed the appeal for want of prosecution, awarding costs to the applicant.
Court Disposition
Application allowed. Appeal dismissed for want of prosecution with costs to the applicant.
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the applicant/respondent.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT HOMA BAY
CIVIL APPEAL NO.29 OF 2017
GEORGE OMOLO ODONGO..................APPELLANT/RESPONDENT
VERSUS
OSCAR OTIENO ODONGO t/a ODONGO
INVESTMENT AUCTIONEERS...............RESPONDENT/APPLICANT
(An appeal from the judgment of Hon. S. Ongeri, PM delivered on 31st May 2017 in Mbita PM’s Court Misc. Civil Application No.1 of 2015)
RULING
1. Application dated 20th May 2019, seeks orders that the appeal lodged by the respondent in June 2017, be dismissed for want of prosecution with necessary costs to the applicant.
The grounds in support of the application are in the body of the appropriate chamber summons and supported by the averments in a supporting affidavit dated 20th May 2019 deponed by the applicant.
The response to the application is based on the averments contained in the respondent/appellant’s replying affidavit dated 25th June 2019.
This court has given due consideration to the supporting grounds and the opposition by the appellant as well as the oral submissions by the parties and is of the considered view that the appellant/respondent has completely failed to demonstrate why this court’s discretion should be exercised in his favour as he has failed to give proper, valid and satisfactory grounds for his failure to prosecute the appeal since it was filed herein on 8th November 2017, almost two years ago.
The indulgence which was granted to the appellant earlier by this court was sufficient enough and the fact that he failed to take further action to have this appeal prosecuted is a clear demonstration that he is not serious in having the appeal prosecuted and that his response in objection to the present application is an abuse of the court process.
In sum, the application is allowed with costs to the applicant/respondent.
J.R. KARANJAH
JUDGE
15. 07. 2019
[Read and signed this 15th day of July, 2019]