[2019] KEHC 2399 (KLR)
The court found that the appellant had not taken any action to prosecute the appeal since 22nd September, 2015 and had failed to provide a satisfactory explanation for the delay. The attempt to blame the court for not admitting the appeal was rejected, as the appellant did not demonstrate any effort to move the...
Source-derived case information.
- Citation
- [2019] KEHC 2399 (KLR)
- Parties
- Appellant: George Otieno Sombe (suing as the personal and legal representative of Susan Auma, deceased); Respondent: Ernest Oget Kivai
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 55 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal of appeal for want of prosecution allowed with costs to the applicant/respondent.
- Judges
- TW Cherere
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
George Otieno Sombe (suing as the personal and legal representative of Susan Auma, deceased)
Appellant
Ernest Oget Kivai
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 due to inaction since 22nd September, 2015.
- 2 Whether the appellant's explanation blaming the court for not admitting the appeal is sufficient to prevent dismissal.
Ratio Decidendi
The court found that the appellant had not taken any action to prosecute the appeal since 22nd September, 2015 and had failed to provide a satisfactory explanation for the delay. The attempt to blame the court for not admitting the appeal was rejected, as the appellant did not demonstrate any effort to move the appeal forward or to have it admitted for hearing. The court held that the appellant's indolence and lack of action justified dismissal of the appeal for want of prosecution under Order 17, rule 2 of the Civil Procedure Rules. Accordingly, the application for dismissal was allowed with costs to the applicant/respondent.
Court Disposition
Application for dismissal of appeal for want of prosecution allowed with costs to the applicant/respondent.
Orders
- The notice of motion dated 03rd September, 2019 is allowed.
- The appeal is dismissed for want of prosecution.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
(CORAM: CHERERE-J)
CIVIL APPEAL NO. 55 OF 2006
GEORGE OTIENO SOMBE (suingas the personal and
legal representative of Susan Auma (deceased)................................................APPELLANT
VERSUS
ERNEST OGET KIVAI................................................................................RESPONDENT
RULING
1. By a notice of motion dated 03rd September, 2019, the Respondent seeks dismissal of the Appeal for want of prosecution together with costs.
2. The application is based on the grounds that among others that the appeal was filed on 02nd June, 2006 and has to date not been prosecuted.
3. The application is supported by the affidavit sworn by the applicant on 03rd September, 2019 by Jude Ragot, advocate for the Applicant who reiterates the grounds on the face of the application. He further avers that the matter was last in court on 22nd September, 2015.
4. James Omondi Bunde, advocate for the Respondent in his replying affidavit sworn on 13th September, 2019 faults the court for not admitting the appeal for hearing.
5. Order 17, rule 2 of the Civil Procedure Rules provides that:
(1) In any suit in which no application has been made or step taken by either party for one year, the court may give notice in writing to the parties to show cause why the suit dismissed, and if cause is not shown to its satisfaction, may dismiss the suit.
(2) Any party to the suit may apply for its dismissal as provided in sub-rule 1.
6. The applicant has not explained why no action has been taken to prosecute the appeal since 22nd September, 2015. The Appellant’s attempt to blame the court for not admitting the appeal is unacceptable for the reason that he has not explained his indolence in not taking any action to ensure that the appeal was admitted for hearing.
7. In the end, the notice of motion dated 03rd September, 2019 is considered and allowed with costs to the applicant/Respondent.
DELIVERED AND SIGNED AT KISUMU THIS24thDAY OFOctober2019
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Assistant - Amondi/Okodoi
For the Applicant - N/A
For the respondent - N/A