[2020] KEHC 9321 (KLR)
The delay in prosecuting the appeal was not attributable to the appellants but was caused by the Tribunal's administrative delays, including the expiry of the Tribunal members' term and the resulting inability to issue the decree and certified proceedings. Once the new Tribunal members were appointed, the appellants...
Source-derived case information.
- Citation
- [2020] KEHC 9321 (KLR)
- Parties
- Appellant: Guru Nanak Ramgarhia Sikh Hospital; Appellant: The Administration Guru Nanak Ramgarhia Sikh Hospital; Respondent: Wycliff Amwayi; Respondent: Kulwinder S. Sihra; Respondent: Kamaljeet S. Sihra
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 334 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application dismissed. Directions issued for further conduct of the appeal.
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Stay of Execution, Tribunal Proceedings
- 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
Guru Nanak Ramgarhia Sikh Hospital
Appellant
The Administration Guru Nanak Ramgarhia Sikh Hospital
Appellant
Wycliff Amwayi
Respondent
Kulwinder S. Sihra
Respondent
Kamaljeet S. Sihra
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 delay by the appellants.
- 2 Whether the conditional orders of stay issued by the HIV Tribunal should be set aside.
- 3 Whether the delay in prosecuting the appeal was excusable or attributable to the appellants.
Ratio Decidendi
The delay in prosecuting the appeal was not attributable to the appellants but was caused by the Tribunal's administrative delays, including the expiry of the Tribunal members' term and the resulting inability to issue the decree and certified proceedings. Once the new Tribunal members were appointed, the appellants promptly obtained the necessary documents and compiled the record of appeal. Therefore, the delay was excusable and not a ground for dismissal of the appeal for want of prosecution. The record of appeal having now been filed, the matter should proceed for directions under Section 79B of the Civil Procedure Act.
Court Disposition
Application dismissed. Directions issued for further conduct of the appeal.
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- The record of the Tribunal to be availed and file placed before a judge in chambers for directions under Section 79B Civil Procedure Act.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 334 OF 2018
GURU NANAK RAMGARHIA
SIKH HOSPITAL.....................................................1ST APPELLANT/RESPONDENT
THE ADMINISTRATION GURU
NANAK RAMGARHIA SIKH HOSPITAL........2ND APPELLANT/RESPONDENT
VERSUS
WYCLIFF AMWAYI ..............................................1ST RESPONDENT/APPLICANT
KULWINDER S. SIHRA................................................................2ND RESPONDENT
KAMALJEET S. SIHRA................................................................3RD RESPONDENT
RULING
1. The application dated 7th February, 2014 seeks orders that:
1. That the Appeal be dismissed for want of prosecution.
2. That the conditional orders of stay issued by the HIV Tribunal vide ruling delivered on 6th July, 2018 be set aside.
2. That in the alternative:
1. That the Appeal be prepared and set down for hearing and determination forthwith.
2. That the costs of this application be borne by the Appellants in any case.
3. It is stated in the grounds and the affidavit in support of the application that the Appellants have failed to take steps to prosecute the Appeal herein. It is deposed that the delay is inexcusable yet the Appellants continue to enjoy the orders of stay of execution.
4. The application is opposed. The Appellants filed a replying affidavit and two supplementary affidavits. The delay in prosecuting the Appeal is blamed on the delay by the Tribunal in supplying the typed and certified copies of the proceedings and the decree. It was further averred in the supplementary affidavits that further delay was caused by the expiry of the term of the Tribunal members. That new members of the Tribunal were appointed on 24th May, 2019 and the Appellants were then issued with the decree and a certificate of delay and the Record of Appeal prepared.
5. The 2nd and 3rd Respondents did not participate in the application.
6. I have considered the application, the response to the same and the submissions by the respective counsel for the parties.
7. The exhibited copies of the proceedings from the Tribunal reflect that the same were certified as true copies of the original on 13th November, 2018. A letter dated 13th February, 2019 from the Tribunal addressed to the Respondents Advocates shows that the decree could not be availed as the Tribunal’s members term had expired in December, 2018. The delay was thus caused by circumstances beyond the control of the Appellants.
8. The Record of Appeal has now been compiled and filed. Consequently, I direct that the record of the Tribunal be availed and file be placed before a judge in chambers for directions under Section 79B Civil Procedure Act. Costs in cause.
Dated, signed and delivered at Nairobi this 13th day of Feb., 2020
B. THURANIRA JADEN
JUDGE