[2019] KEHC 7400 (KLR)
The court found that there had been a delay of 7 years since the filing of the appeal and 5 years since its admission for hearing, with no satisfactory explanation provided for the delay. The purported cessation of representation by the appellant's advocates was not supported by a formal court order, meaning the...
Source-derived case information.
- Citation
- [2019] KEHC 7400 (KLR)
- Parties
- Appellant: Godfrey Wafula; Respondent: Ezekiel Barasa Waluchio
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 27 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- SN Riechi
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Process, Execution of Judgment
- 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
Godfrey Wafula
Appellant
Ezekiel Barasa Waluchio
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 inordinate delay.
- 2 Whether the advocates on record properly ceased acting for the appellant.
Ratio Decidendi
The court found that there had been a delay of 7 years since the filing of the appeal and 5 years since its admission for hearing, with no satisfactory explanation provided for the delay. The purported cessation of representation by the appellant's advocates was not supported by a formal court order, meaning the advocates remained on record. The inordinate delay demonstrated a lack of interest in prosecuting the appeal, justifying dismissal for want of prosecution to avoid prejudice to the respondent and to facilitate execution of the original judgment.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is hereby dismissed for want of prosecution.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL APPEAL NO. 27 OF 2012
GODFREY WAFULA.......................................APPELLANT
VERSUS.
EZEKIEL BARASA WALUCHIO.................DEFENDANT
RULING.
The Respondent Ezekiel Barasa Walucho [Plaintiff in the Magistrates Court – Bungoma Civil Case No. 243/2010] filed the suit against the Appellant Godfrey Wafula claiming general damages arising from a road traffic accident where his son Anthony Barasa Wapangala died. The Appellant filed defence denying liability on 27. 3.2012. Parties filed a Consent on liability to be apportioned at 20:80 in favour of the Plaintiff.
By Judgment dated 22. 5.2012 Nyarima – CM awarded the Respondent Kshs.427,840 to the Respondent after due deduction on contribution at 20%. Dissatisfied with the award the appellant filed this Civil Appeal No. 21/2012 on 31. 5.2012. The appeal was admitted for hearing on 14. 2.2014.
Mr. Mwebi for the Applicant prayed to this court to dismiss the appeal as no action has been taken since the same was admitted to Appeal. M/S Lilani Advocate filed a Replying Affidavit stating that they ceased acting for the appellant and attached an application. He confirms he lost touch with the appellant and does not know his whereabouts. I have perused the documents annexed by Lilani & Co. Advocates. There is no order allowing them to cease acting attached to their response. It therefore means that they are the Advocates properly on record. No explanation for the delay in prosecuting this suit has been made; other than they have been unable to trace the appellant.
Delaying prosecuting this appeal has an effect on the execution of the Judgment. I therefore find a delay of 7 years since filing and 5 years since admission inordinate which shows lack of interest in this appeal. This Appeal is hereby dismissed for want of Prosecution.
Dated and Delivered at Bungoma this 16th day of May, 2019.
S.N. RIECHI
JUDGE