[2023] KEHC 25833 (KLR)
The court found that the appellant failed to comply with its directions to file and serve the record of appeal within the stipulated time, despite being served with notice and having his contacts available. No explanation was provided for the non-compliance. The court exercised its discretion to dismiss the appeal...
Source-derived case information.
- Citation
- [2023] KEHC 25833 (KLR)
- Parties
- Appellant: Bartholomeo Odima Ganda; Respondent: Julius Owino Ganda
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Succession Appeal E5 of 2023
- Procedural Posture
- Succession Appeal / Ruling on Compliance With Directions
- Outcome
- appeal dismissed for non-compliance with court directions; no order as to costs
- Judges
- RE Aburili
- Legal Topics
- Appeal Dismissal, Non Compliance With Court Orders, Succession Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Bartholomeo Odima Ganda
Appellant
Julius Owino Ganda
Respondent
Procedural Posture
Succession Appeal / Ruling on Compliance With Directions
Legal Issues
- 1 Whether the appeal should be dismissed for failure to comply with court directions on filing and serving the record of appeal.
- 2 Whether costs should be awarded given the familial relationship of the parties.
Ratio Decidendi
The court found that the appellant failed to comply with its directions to file and serve the record of appeal within the stipulated time, despite being served with notice and having his contacts available. No explanation was provided for the non-compliance. The court exercised its discretion to dismiss the appeal for want of prosecution and non-compliance with court orders. Given that the parties are family members, the court ordered that each party bear their own costs to avoid further animosity. The lower court file was ordered to be returned, and the High Court file closed.
Court Disposition
appeal dismissed for non-compliance with court directions; no order as to costs
Orders
- The appeal is dismissed for non-compliance with court directions.
- Each party shall bear their own costs.
Full Case Text
Judgment text and source record
21 paragraphs
In re Estate of Charles Ganda - Deceased (Succession Appeal E5 of 2023) [2023] KEHC 25833 (KLR) (16 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25833 (KLR)
Republic of Kenya
In the High Court at Kisumu
Succession Appeal E5 of 2023
RE Aburili, J
November 16, 2023
IN THE MATTER OF THE ESTATE OF CHARLES GANDA – DECEASED
Between
Bartholomeo Odima Ganda
Appellant
and
Julius Owino Ganda
Respondent
Ruling
1. The appeal was admitted to hearing on 30th June 2023 and this court directed the Appellant to file and serve a record of appeal within 21 days of the date Notice was issued but the Appellant never responded.
2. His phone contacts were made available and a fresh notice for mention was issued and the Respondent’s counsel served him on 4th November 2023 with Notice for today as per the affidavit of service filed in court, sworn on 6th November 2023. The Appellant is absent.
3. In the premises, and in the absence of any reasons for non-compliance with directions of this court made on 30th June 2023, this court proceeds to dismiss this appeal with no orders as to costs, parties being family members.
4. The lower court file to be returned forthwith.
5. This file is closed. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF NOVEMBER, 2023R. E. ABURILIJUDGE