[2003] KEHC 782 (KLR)
The court found that although there was a long delay in prosecuting the appeal, the responsibility for providing certified copies of proceedings lies with the court, subject to payment of requisite fees by the appellant. Since there was no evidence that the appellant had failed to pay the necessary fees, and the...
Source-derived case information.
- Citation
- [2003] KEHC 782 (KLR)
- Parties
- Appellant: Imperial Bank Ltd.; Respondent: Munir Khan Murad Khan
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 33 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal of appeal for want of prosecution dismissed. Directions given for supply of proceedings and further steps.
- Legal Topics
- Dismissal for Want of Prosecution, Mandatory Injunctions, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Imperial Bank Ltd.
Appellant
Munir Khan Murad Khan
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant.
- 2 Who bears the responsibility for obtaining certified copies of proceedings necessary for the appeal to proceed.
Ratio Decidendi
The court found that although there was a long delay in prosecuting the appeal, the responsibility for providing certified copies of proceedings lies with the court, subject to payment of requisite fees by the appellant. Since there was no evidence that the appellant had failed to pay the necessary fees, and the delay was not solely attributable to the appellant, the court declined to dismiss the appeal for want of prosecution. Instead, the court directed the registry to supply the certified copies upon payment of fees, and set timelines for taking directions and setting the appeal down for hearing.
Court Disposition
Application for dismissal of appeal for want of prosecution dismissed. Directions given for supply of proceedings and further steps.
Orders
- The Registry to supply certified copies of proceedings and the E.O. in charge to ensure the same is done on payment of any requisite fees within 30 days.
- Directions to be taken within 30 days thereafter and appeal set down for hearing 30 days after taking of directions.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT O KENYA
AT MOMBASA
CIVIL APPEAL NO. 33 OF 2001
IMPERIAL BANK LTD.…………………………………… APPELLANT
VERSUS
MUNIR KHAN MURAD KHAN …………………………. RESPONDENT
RULING
The Appellant Bank filed an appeal on 26. 4.2001 against the ruling by the Principal Magistrate Mr. Mushelle in CMCC No. 1046 of 2001 in which he granted mandatory injunction. A further application for stay pending appeal was granted on 21st May, 2001 but no other action was taken. It is this delay in prosecuting the appeal that prompted the respondent to apply for dismissal of the appeal for want of prosecution.
According to the Appellant, they are not able to fix the same as no directions have been taken and that no directions can be taken as no proceedings have been provided by the court.
Mr. Gakuo for the Respondent said the court only provides proceedings when the requisite fees has been paid and in this case, there was no evidence of the same having been done.
I have considered the submissions on both sides and as much as I agree that there is a long delay in prosecuting the appeal, the duty to provide certified copies of proceedings lies with the court. In the circumstances I order as follows:
1. The Registry to supply certified copies of proceedings and the E.O. in charge to ensure the same is done on payment of any requisite fees within a period of 30 days from today’s date.
2. Directions to be taken within 30 days thereafter and appeal set down for hearing 30 days thereafter the taking of directions.
3. costs of the a pplication in any event to the Applicant.
Dated this 21st day o May 2003.
P.M. TUTUI
COMMISSIONER OF ASSIZE
Delivered this 6th day of June, 2003