[2022] KEHC 11303 (KLR)

In re Estate of Karasinka Ole Samuria Alias Karasinka Samuria ( Deceased) (Succession Appeal 1 of 2018) [2022] KEHC 11303 (KLR) (11 May 2022) (Ruling)

Neutral citation: [2022] KEHC 11303 (KLR)

Republic of Kenya

In the High Court at Narok

Succession Appeal 1 of 2018

F Gikonyo, J

May 11, 2022

IN THE MATTER OF THE ESTATE OF KARASINKA OLE SAMURIA ALIAS KARASINKA SAMURIA (DECEASED)

Between

Simon Kishanto Kudate

Appellant

and

Kipailoi Ole Munka

1st Respondent

Tikoishi ole Nampaso

2nd Respondent

Ruling

1. By a notice of motion dated January 27, 2021, the applicant seeks;i.The appeal be dismissed for want of prosecution with costs of the application and appeal awarded to the applicants.

2. The grounds upon which that application is premised are that there has been inordinate and inexcusable delay on the part of the appellant/respondent in prosecuting the appeal herein. According to them, the applicant has long lost interest in the appeal, yet, the applicants continue to suffer prejudice by the continued pendency of the appeal since the appellant had placed a caution on parcel number CIS/Mara/ Oleleshwa/162.

3. The grounds are reiterated and exemplified in the supporting affidavit of Tikoishi Ole Nampaso. The deponent emphasizes two things. One, that the appeal was last in court on July 11, 2018 when the memorandum of appeal was filed. Two, that a period of more than one year has lapsed without any action or step being taken by the appellant/respondent to prosecute the appeal.

4. The appellant/ respondent filed a replying affidavit on February 23, 2021 sworn by Simon Kishanto Kudate on February 23, 2021 opposing the application. The appellant/ respondent explains the delay in filing the record of appeal; it was due to;i)the Covid-19 pandemic which led to closure of the courts and offices; andii)his advocate was on maternity leave in the month of October 2020.

5. Directions were taken that the application be canvassed by way of written submissions. Only the respondent filed submissions; the appellant did not.

The Respondents/Applicants’ Submissions 6. The respondents/applicants augmented the grounds of the application and submitted that the appellant has not explained the delay, thus, no need for sustaining the appeal. The applicant has been busy in other courts filing unnecessary suits; ELC No 10 of 2019, ELC Misc No 2 of 2021 which was pending ruling on February 24, 2022. The respondents urged this court to dismiss the suit with costs to the respondents. The respondents relied on order 17 rule 2, Argan Wekesa Okumu v Dima College Limited & 2 others [2015] eKLR, Mwangi S Kimenyi v Attorney, Civil Suit Misc No 720 of 2009

Analysis and Determination 7. I have considered the application by the applicants, the grounds, supporting affidavit, replying affidavit and written submissions as well as the cited judicial authorities. The issue for determination is whether there is justification to dismiss the appeal for want of prosecution.

8. The memorandum of appeal was filed on July 11, 2018. The appellant went to sleep only to be awakened on February 4, 2021 after learning of this present application for dismissal of his appeal for want of prosecution. The delay is of over two years – quite long slumber indeed. The appellant’s affidavit in reply to the application for dismissal of the subject appeal makes vague statements that his advocate was prevented from filing the record of appeal by the Covid 19 pandemic. This court takes judicial notice that Covid 19 hit this country in March 2020. Closure of public office was after Covid-19 was detected in Kenya- which was over one and a half years since the filing of the memorandum of appeal. It is unfortunate that the appellant has the audacity of blaming Covid-19 pandemic for his indolence in this matter. Similarly, the advocate went for maternity leave was in October 2020. The conduct of the appellant seems quite temporizing and one which takes court process casually. It appears that the appellant is having the benefit of a caution on the suit premises, and also drawing dividends from the pendency of this appeal. These matters, coupled with the fact that no step has been taken by the appellant since he filed the appeal is indolence per excellence which is quite inordinate delay that has not been explained.

9. In the upshot, the appeal is hereby dismissed for want of prosecution, with costs to the applicants.

10. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 11TH DAY OF MAY, 2022. ............................F GIKONYO MJUDGEIn the Presence of:1. Mrs. Karia for Respondents2. Kudate – Nchoe and Lemein for Appellants – Tanyasis present3. Kasaso – Court Assistant