[2022] KEHC 17147 (KLR)
The court found that the appellant had failed to prosecute the appeal for over four years, constituting inordinate delay. Despite being given several opportunities and indulgences to file the record of appeal, the appellant failed to comply. The court noted that each time a notice to show cause was issued, the...
Source-derived case information.
- Citation
- [2022] KEHC 17147 (KLR)
- Parties
- Appellant: Joseph Ngure Gichehia; Respondent: Geoffrey Griffiths
- Court
- High Court
- Court Station
- High Court at Naivasha
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 42 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- conditional extension granted; appeal to stand dismissed automatically if record of appeal not filed and served within seven days
- Judges
- GL Nzioka
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Record of Appeal Filing, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Ngure Gichehia
Appellant
Geoffrey Griffiths
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 inordinate delay by the appellant in filing the record of appeal.
- 2 Whether the appellant should be granted a further opportunity to file and serve the record of appeal.
Ratio Decidendi
The court found that the appellant had failed to prosecute the appeal for over four years, constituting inordinate delay. Despite being given several opportunities and indulgences to file the record of appeal, the appellant failed to comply. The court noted that each time a notice to show cause was issued, the appellant changed counsel and sought further time, demonstrating a pattern of non-vigilance and lack of seriousness in prosecuting the appeal. However, in the interest of justice, the court exercised its discretion to grant a final seven-day period for the appellant to file and serve the record of appeal. The court ordered that if the record of appeal was not filed and served within...
Court Disposition
conditional extension granted; appeal to stand dismissed automatically if record of appeal not filed and served within seven days
Orders
- The appellant is granted seven days from the date of the order to file and serve the record of appeal.
- If the record of appeal is not filed and served within seven days, the appeal will stand dismissed automatically with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
Gichehia v Griffiths (Civil Appeal 42 of 2018) [2022] KEHC 17147 (KLR) (19 December 2022) (Ruling)
Neutral citation: [2022] KEHC 17147 (KLR)
Republic of Kenya
In the High Court at Naivasha
Civil Appeal 42 of 2018
GL Nzioka, J
December 19, 2022
Between
Joseph Ngure Gichehia
Appellant
and
Geoffrey Griffiths
Respondent
Ruling
1. The respondent has applied for dismissal of the matter herein on the ground that the appellant has not set it down for hearing for a long time. The appellant has however, opposed the appeal on the ground that he has been having a challenge with the previous counsel on record and has now instructed a new counsel who requires seven days within which to file and serve a complete record of appeal.
2. I have considered the matter and I find that, the appellant filed a memorandum of appeal on August 16, 2018. That is a period of 4 years and four months. It is clear that todate, no record of appeal has been filed. The court records indicates as follows;-a.On September 23, 2021, the court observed that, no record of appeal has been filed.b.On November 23, 2021, the court observed the appeal was old and directed respondent to serve the appellant with a notice to show cause why the appeal could not be dismissed.c.On May 18, 2022, the court was informed that the Notice to show cause had been served. However, the learned counsel for the appellant sought for indulgence on the ground that, the law firm had just taken over the matter. He was given 30 days within which to file a complete record of appeal.d.On July 17, 2022, the said counsel sought for leave to file an application to withdraw from acting for the Appellant. It is noteworthy that, by that time, the record of appeal had not been filed, yet the 30 days given for the same had expired.e.On October 6, 22, the appellants counsel withdrew the application to cease acting for the complainant. The appellant was allowed to file and serve the record of appeal and further directions given on filing of submission upon admission of the appeal.f.On December 1, 2022, the court issued a second notice to show cause to the appellant, upon the application thereof by the respondent.g.Apparently, the counsel seeking for seven (7) days is reacting to that notice to show cause.
3. Pursuant to the aforesaid the following is clear;-a.The matter herein has not been prosecuted for over 4 years. That is inordinate delay.b.The appellant has been indulged all through and accorded several opportunities to file the record of appeal in vain.c.On each occasion the appellant is served with a notice to show cause, he instructs a new counsel to state that, he has just been instructed.d.The trial court file has all along been available with the typed proceedings, therefore if the appellant was vigilant, he should have filed a record of appeal.
4. It is therefore clear that, even if the appellant is given a further chance nothing will happen in the matter. I am therefore inclined to concur with the respondent’s prayer for dismissal of the matter with costs. However, in the interest of justice, I shall allow strictly the seven (7) days requested for, for the record of appeal to be filed and served. The seven days run from the date of this order. On the 8th day hereof, if the record of appeal will not have been filed and served the appeal will stand dismissed automatically with further reference to court, with costs to the respondent.
It is so ordered.
DATED, DELIVERED AND SIGNED ON THIS 19TH DECEMBER 2022GRACE L. NZIOKAJUDGEIn the presence of:-Ms Ogutu- Court AssistantMs Njoroge for the Respondent