[2018] KEHC 2556 (KLR)
The court found that the delay by the appellant in prosecuting the appeal was not inordinate, as the record of appeal was filed within the period agreed by consent and the appellant was vigilant in fixing the matter for directions. The court exercised its discretion not to dismiss the appeal for want of prosecution,...
Source-derived case information.
- Citation
- [2018] KEHC 2556 (KLR)
- Parties
- Appellant: Ireri Moses; Respondent: Peter Mutugi Muthike (Suing as the legal administrator of estate of the late Mary Njeri Muthike)
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 23 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- LW Gitari
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Delay in Prosecution, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ireri Moses
Appellant
Peter Mutugi Muthike (Suing as the legal administrator of estate of the late Mary Njeri Muthike)
Respondent
Procedural Posture
Civil Appeal / 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 delay by the appellant in taking steps to prosecute the appeal.
- 2 Whether the delay in filing the record of appeal and taking directions was inordinate or excusable.
Ratio Decidendi
The court found that the delay by the appellant in prosecuting the appeal was not inordinate, as the record of appeal was filed within the period agreed by consent and the appellant was vigilant in fixing the matter for directions. The court exercised its discretion not to dismiss the appeal for want of prosecution, holding that the appellant should be given the opportunity to prosecute and be heard on appeal. The application for dismissal was therefore dismissed, and each party was ordered to bear its own costs.
Court Disposition
application dismissed
Orders
- The application to dismiss the appeal for want of prosecution is dismissed.
- Each party shall bear its own costs.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
HIGH COURT CIVIL APPEAL NO. 23 OF 2016
IRERI MOSES.....................................................................................APPELLANT
V E R S U S
PETER MUTUGI MUTHIKESuing as the legal administrator of estate of the late
MARY NJERI MUTHIKE (Deceased)............................................RESPONDENT
RULING
The respondents Peter Mutugi Muthike (Suing as the Legal Administrator of the Estate of the late Mary Njeri Muthike (deceased) filed an application to dismiss the appeal for want of prosecution dated 28/07/2017 on ground that the appellant preferred an appeal on 21/04/2016 and since then he has not taken any step towards prosecuting his appeal.
The respondent stated that stay of execution was granted and they requested the executive Officer for typed proceedings and judgment to enable them file Record of Appeal. That the delay to file record of Appeal and prosecute was occasioned by the delay from the lower court to furnish the requisite documents. In addition, the appeal is yet to be admitted under Section 79B of the Civil procedure Act and therefore no steps can be undertaken by the appellants.
As per the proceedings of the file, judgment was delivered on 22/03/2016, the appeal was admitted for hearing on 24/02/2017 and the parties were notified of the same through Notice dated 17/03/2017. Therefore the allegations by the appellant that the appeal is yet to be admitted are misleading.
Section 79B of the Civil Procedure Act
Before an appeal from a subordinate court to the High Court is heard, a judge of the High Court shall peruse it, and if he considers that there is no sufficient ground for interfering with the decree, part of a decree or order appealed against he may, notwithstanding section 79C, reject the appeal summarily.
Order 42 Rule 35 of the Civil Procedure Rules:
1. Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution.
2. If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.
The Court has discretion. The court considers whether the delay was inordinate or excusable.
In Mohamed Adan & 2 others v Hadija Hassan mohamed & 2 others (Suing as the legal representative of the estate of Ali Noor Ibrahim Karu (Deceased) [2014] eKLR
In this case, the appellant had delayed for a period of only four months and the court held;
“In the circumstances of this matter, I am of the view that the short delay of a few months in prosecuting the appeal by the appellants cannot justify the dismissal of the entire appeal for want of prosecution. Such an action will in my view, deny the appellants the benefit of substantive justice. I will thus not allow the application.
However it is obvious to me that the counsel for the appellants went to sleep after filing the appeal. They are not even aware that the appeal has already been admitted by the court to hearing. As such, though I will dismiss the application herein, I will award costs of the application to the applicants.”
In this case, the appellant has delayed for a period of about four months since the appeal was admitted for hearing. Even so, the parties recorded consent on 08/11/2017 whereby the appellant was given 21 days to file record of appeal and take directions thereafter within a month’s time.
The Record of Appeal was duly filed on 06/12/2017 and the matter came up for mention on 15/02/2018. On the said date at the registry, advocates for the appellant fixed the appeal for directions on 10/05/2018 wherein by consent matter was fixed for directions on 18/09/2018.
In all this time, the appellant was vigilant in fixing the matter for directions. I am of the view that the delay was not inordinate. The appellant should be given the opportunity to prosecute and be heard on appeal. I will therefore dismiss the application and order that each party bears its own costs.
L. W. GITARI
JUDGE
18/10/18.
Order:-
The matter be mentioned for directions on 10/12/18.
L. W. GITARI
JUDGE