[1998] KEHC 236 (KLR)
The court found that there had been inordinate delay in the prosecution of the appeal, attributable to the appellant. However, given that the subject matter is land and the appellant has a pending application for joinder of a party, the court exercised its discretion not to dismiss the appeal. Instead, the court...
Source-derived case information.
- Citation
- [1998] KEHC 236 (KLR)
- Parties
- Plaintiff: Hilda Nyambura Gathuri; Defendant: Wilson Mwangi Ramson
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 179 of 1995
- Procedural Posture
- Civil Case / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application to dismiss appeal for want of prosecution dismissed; appeal to be heard on priority basis after disposal of pending application; costs awarded to respondent.
- Legal Topics
- Dismissal for Want of Prosecution, Joinder of Parties, Delay in Prosecution, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hilda Nyambura Gathuri
Plaintiff
Wilson Mwangi Ramson
Defendant
Procedural Posture
Civil Case / 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 by the appellant.
- 2 Whether the appeal should be heard on its merits after disposal of the appellant's pending application for joinder of a party.
- 3 Whether the respondent is entitled to costs of the application.
Ratio Decidendi
The court found that there had been inordinate delay in the prosecution of the appeal, attributable to the appellant. However, given that the subject matter is land and the appellant has a pending application for joinder of a party, the court exercised its discretion not to dismiss the appeal. Instead, the court ordered that the appeal be heard on a priority basis immediately after the disposal of the appellant's pending application. The court also awarded costs of the application to the respondent.
Court Disposition
Application to dismiss appeal for want of prosecution dismissed; appeal to be heard on priority basis after disposal of pending application; costs awarded to respondent.
Orders
- The appeal shall be heard on a priority basis immediately after the disposal of the appellant's pending application.
- The appellant shall pay the respondent's costs for this application.
Full Case Text
Judgment text and source record
13 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI CIVIL CASE NO. 179 OF 1995
HILDA NYAMBURA GATHURI............................................PLAINTIFF versus WILSON MWANGI RAMSON...............................................DEFENDANT
R U L I N G
By an application dated 5th November, 1996 the Respondent moved the court for orders that the appeal herein be dismissed for want of prosecution and in the alternative that the appeal be heard on merits.
The application which is under Order 41 Rule 31(1) of the Civil Procedure Rules and section 3A of the Civil Procedure Act is supported by an affidavit sworn by the respondent Wilson Mwangi Ramson. The appellant Hilda Nyambura Gathuri swore an affidavit in reply. She opposes the application and one of her reasons is that she has a pending application wherein she seeks orders to join one Charles Njuguna Kamau as a party in this appeal and that she be allowed to file affidavit evidence to the effect that the said Charles Njuguna Kamau had no right both in law and fact to sell the subject matter herein.
I have heard both submissions for and against the application. It is true that there has been inordinate delay in this matter which can only be attributed to the appellant. I do not intend to go into the history of the matter at this stage because of the orders I am about to make herein.
The appellant’s application has been listed for hearing on 23rd April, 1998.
The subject matter herein is land and a party should be allowed to exhaust all existing avenues. I shall in the circumstances order that this appeal shall be heard on priority basis immediately after the disposal of the appellant’s application aforesaid.
The appellant shall however pay the respondent’s costs for this application.
Orders accordingly.
Dated and delivered at Nairobi this 26th day of March, 1998.
A. MBOGHOLI MSAGHA
JUDGE