[2017] KEHC 6735 (KLR)
The court found that the appellant had provided a plausible and satisfactory explanation for the delay in prosecuting the appeal, namely the failure by the Cooperative Tribunal to supply the necessary typed proceedings and ruling despite repeated requests. The court was satisfied by the correspondences annexed to...
Source-derived case information.
- Citation
- [2017] KEHC 6735 (KLR)
- Parties
- Appellant: Githunguri Dairy Farmers Co-Op Society; Respondent: Peter Nganga Waweru & 22 Others
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 438 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- notice to show cause set aside; appeal to proceed
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Githunguri Dairy Farmers Co-Op Society
Appellant
Peter Nganga Waweru & 22 Others
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant.
- 2 Whether the appellant has provided a satisfactory explanation for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had provided a plausible and satisfactory explanation for the delay in prosecuting the appeal, namely the failure by the Cooperative Tribunal to supply the necessary typed proceedings and ruling despite repeated requests. The court was satisfied by the correspondences annexed to the affidavit of the appellant's chairman, which demonstrated the appellant's efforts to obtain the required documents. Consequently, the court exercised its discretion to set aside the notice to show cause and directed the parties to expedite the process of preparing the appeal for hearing. Costs of the notice to show cause were ordered to abide the outcome of the appeal.
Court Disposition
notice to show cause set aside; appeal to proceed
Orders
- The notice to show cause dated 17.11.2015 is set aside.
- Parties are directed to expedite the processes of getting the appeal ready for hearing.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 438 OF 2011
GITHUNGURI DAIRY FARMERS CO-OP SOCIETY..............APPELLANT
-V E R S U S –
PETER NGANGA WAWERU & 22 OTHERS.....................RESPONDENT
RULING
1) Pursuant to the provision of Order 35 rule 2 of the Civil Procedure Rules, the Deputy Registrar of this court served the parties to this appeal with a notice to show cause( N.T.S.C) why the appeal should not be dismissed for want of prosecution. The notice to show cause is dated 17. 11. 2015.
2) Githunguri Dairy Farmers Cooperative Society responded to the notice to show cause by filing the affidavit of its chairman, Charles Ndichu Mukora to explain why the appeal should be spared for hearing. The main reason advanced by the appellant for the delay in prosecuting the appeal is that the Cooperative Tribunal had failed to supply the appellant with the typed proceedings and ruling despite making several written requests. I have perused the correspondences annexed to the affidavit of Charles Ndichu Mukora and I am satisfied that the appellant has given plausible explanation for the delay in prosecuting the appeal. The notice to show cause is set aside. Parties are directed to expedite the processes of getting the appeal ready for hearing. Costs of the notice to show cause to abide the outcome of the appeal.
Dated, Signed and Delivered in open court this 10th day of March, 2017.
J. K. SERGON
JUDGE
In the presence of:
..............................................................for the Appellant
........................................................for the Respondent