[2018] KEHC 502 (KLR)
The court found that the appellants were not indolent, as evidenced by their filing of the record of appeal and repeated written requests for directions and hearing dates. The delay in prosecuting the appeal was attributed to the unavailability of the lower court file, which was necessary for the court to admit the...
Source-derived case information.
- Citation
- [2018] KEHC 502 (KLR)
- Parties
- Appellant: Selinah J.K. Kandie & Mark Kandie (suing on behalf of the Estate of the late Philip Kimaiyo Kandie); Respondent: Peter Kibet Biwott
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 377 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause Regarding Dismissal for Want of Prosecution
- Outcome
- Appeal not dismissed; conditional extension granted for prosecution.
- Judges
- LM Njuguna
- Legal Topics
- Appeal Dismissal, Delay in Prosecution, Notice to Show Cause
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Selinah J.K. Kandie & Mark Kandie (suing on behalf of the Estate of the late Philip Kimaiyo Kandie)
Appellant
Peter Kibet Biwott
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause Regarding 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 Whether the appellant has demonstrated sufficient cause to avoid dismissal of the appeal.
Ratio Decidendi
The court found that the appellants were not indolent, as evidenced by their filing of the record of appeal and repeated written requests for directions and hearing dates. The delay in prosecuting the appeal was attributed to the unavailability of the lower court file, which was necessary for the court to admit the appeal and proceed to directions. The court exercised its discretion not to dismiss the appeal for want of prosecution but imposed a strict timeline for the appellants to prosecute the appeal within 90 days, failing which the appeal would stand dismissed. The court also directed that the Executive Officer of the Milimani Chief Magistrate’s Court attend court to explain the...
Court Disposition
Appeal not dismissed; conditional extension granted for prosecution.
Orders
- The appeal shall be prosecuted within 90 days from the date of this ruling, failing which it shall stand dismissed.
- The matter shall be mentioned on 29th November, 2018 for the Executive Officer in charge of Milimani Chief Magistrate’s Court to attend and explain why the lower court file has not been forwarded.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO.377 OF 2013
SELINAH J.K. KANDIE & MARK KANDIE
(suing on behalf of the Estate of the late
PHILIP KIMAIYO KANDIE................APPELLANT
VERSUS
PETER KIBET BIWOTT..................RESPONDENT
(Being an appeal from the judgment and Decree of Hon. Ms. Kipkorir, R.M delivered at Milimani Commercial Courts in Civil Suit No. 1033 of 2009 on 24th June 2013)
RULING
The Appeal herein was filed on the 5th day of July 2013 and due to the slow pace at which it was being prosecuted, the court on its own notion listed it for Notice to Show Cause on the 28th September, 2018 after serving the respective parties with the relevant notices.
In response to the notice to show cause, the Appellant filed an affidavit sworn by Samuel Nyambane on the 11th of July 2018. In the said affidavit, he depones that he filed a Record of Appeal on the 18th July 2014 and thereafter, he has requested for a date for directions on numerous occasions but the directions have not been issued. He has annexed some letters addressed to the Deputy Registrar.
He avers that the Record of Appeal is complete and the matter ought to be listed for hearing and that the Appellant is desirous of prosecuting the Appeal. That it is in the interest of justice that the Appellant be allowed to prosecute the Appeal as no prejudice will be occasioned upon the Respondent.
The court has considered the contents of the said affidavit together with the annextures. The Appellant has annexed three letters to the Deputy Registrar Milimani High Court. Two of those letters were received at the registry and they are dated 11th July 2014 and 16th January 2015. In the letter dated 11th July 2014, the Appellant forwarded the Record of Appeal for filing and requested for directions and/or hearing date for the Appeal. The letter dated 16th January 2015 is a follow up letter to another one dated 17th November, 2014 but which is not annexed to the affidavit but which is a part of the record, requesting for a date for directions. The other two letters were not received at the registry and it is difficult to tell when exactly they were written if at all.
From the said annextures, the Appellants cannot be said to have been indolent but they were following up the matter. A record of Appeal was filed on 13th July 2014 but the lower court file has not been received to enable the court admit the Appeal and thereafter list the matter for directions to pave way for the hearing of the Appeal.
In the premises, the court will not dismiss the Appeal but since it’s an old matter, the same should be prosecuted within 90 days from the date of this ruling failing which, it shall stand dismissed. Since the lower court file is not available, the matter shall be mentioned 29th November, 2018 on which date the Executive Officer in charge of Milimani Chief Magistrate’s Court shall attend court and explain why the file has not been forwarded to this court. This order be extracted and served upon the Executive Officer by the Appellant.
Dated, Signed and Delivered at Nairobi this 15thday of November, 2018
…………………
L. NJUGUNA
JUDGE
In the presence of:-
…………………………….......For the Appellant
………………………………...For the Respondent