[2017] KEHC 5292 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

ELC NO. 23 OF 2011

HALIMA H. GONJOBE…………....................................APPELLANT

VERSUS

HALIMA FARAH ABDI………..…….……………...1st RESPONDENT

MOHAMED FARAH ABDI………….…………..…2ND RESPONDENT

MOHAMMUD FARAH ABDI….…….....………….3RD RESPONDENT

CELTEL (KENYA) LIMITED…………….…………4TH RESPONDENT

RULING

1. This ruling is in respect of the application dated 24th June, 2013 where applicant prays for orders:

1. That this Honourable Court be pleased to dismiss the Appeal herein for want of prosecution.

2. That the Costs of this Application and the entire Appeal be borne by the Appellant.

2. The Application is based on the grounds;

(1) That it is more than 2 Years from the date the Memorandum of Appeal was filed and served yet the Appellant has failed and/or refused to set the Appeal down for hearing and has refused to take essential steps to ensure the Appeal is heard and determined expeditiously.

(2) That the Appellant has gone to a deep slumber and is not bothered with the timely hearing and determination of the Appeal herein.

(3) That justice delayed is justice denied.

3. Applicant has also filed a Supporting Affidavit where he has deponed as follows:-

(1) That he is an Advocate of the High Court of Kenya and in conduct of this Appeal on behalf of the 1st Respondent and he is duly authorized to swear this Affidavit on his behalf as Counsel who is well seized of the facts therein.

(2) That the Appeal herein was filled on 24th February, 2011 vide the Memorandum of Appeal dated 23rd February, 2011.

(3) That it is now 2 years down the line from the time the Memorandum of Appeal was served upon his office yet the Appellant has never taken any step to have the Appeal prosecuted.

(4) That the Appellant has not even prepared, filed and served a record of Appeal showing indeed that she has no interest in the Appeal and has gone to slumber since filing the Appeal ( Attached herein a letter marked "ZK 1" dated 3rd May, 2013 from the Advocate of the 1st Respondent to the Advocate of the Appellant requesting to be served with Record of Appeal.

(5) That it is unfair and prejudicial for this Appeal to be kept pending since the Appellant has refused to take essential steps to ensure the same will be heard and determined expeditiously.

(6) That Applicant prays that this Honourable Court to order the Appeal be dismissed for want of prosecution.

4. There is a Supporting Affidavit of Zaveria Kiambi it is deponed that the appeal has never been prosecuted since February 2011 when the memorandum of appeal was filed.

It is averred that the record of appeal was not prepared and that appellant did not take any steps to have the appeal prosecuted.

5. No response was ever filed by or on behalf of the Respondents. On 8th September, 2016 the court gave directions for the submissions to be filed. Only the Applicant complied and filed submissions.

6. However, the order of 8th September 2016 also indicate that 4th Respondent’s advocates be served with the court’s orders of 8th September 2016. There is no evidence to show that this order was complied with.

7. Seeing that this case is very old, and considering that 4th Respondent appears not to have been brought on board, and noting that the advocates for the parties appear not to have been following up the matter, then directions are given as follows:-

1. The application of 24th June, 2015 is dismissed with no orders as to costs.

2. The appeal to be listed down for hearing forthwith (as the lower court file and the record of appeal are in the file.

3. Appellant to serve 4th Respondent with the suit documents and the date for hearing.

DELIVERED, DATED AND SIGNED AT MERU THIS 31ST DAY OF MAY, 2017

IN THE PRESENCE OF:- CA: Janet

Appellant present

1st Respondent present

2nd Respondent present

3rd Respondent absent

4th Respondent absent

HON. L. N. MBUGUA

JUDGE