[2011] KEHC 24 (KLR)
The court found that the appellants had not taken any steps to prosecute the appeal since filing the memorandum of appeal two years prior. There was no evidence of any correspondence or effort by the appellants or their counsel to obtain the proceedings from the subordinate court. The court inferred that the...
Source-derived case information.
- Citation
- [2011] KEHC 24 (KLR)
- Parties
- Appellant: James Mbugua; Appellant: Beauty Line Limited; Respondent: Joseph Ngomero
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 170B of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Record of Appeal, Court Proceedings Availability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Mbugua
Appellant
Beauty Line Limited
Appellant
Joseph Ngomero
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 inaction by the appellants.
- 2 Whether the unavailability of proceedings from the subordinate court justifies the appellants' failure to prosecute the appeal.
Ratio Decidendi
The court found that the appellants had not taken any steps to prosecute the appeal since filing the memorandum of appeal two years prior. There was no evidence of any correspondence or effort by the appellants or their counsel to obtain the proceedings from the subordinate court. The court inferred that the inactivity was due to lack of interest on the part of the appellants. Consequently, the court held that there was no justification for keeping the appeal pending and that the application to dismiss the appeal for want of prosecution was merited.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs of the application to be borne by the appellants.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL 170B OF 20O8
JAMES MBUGUA..............................................................................................................1ST APPELLANT
BEAUTY LINE LIMITED.....................................................................................................2ND APPELLANT
VERSUS
JOSEPH NGOMERO............................................................................................................RESPONDENT
RULING
The application dated 28/04/2011 is made pursuant to Order 42 Rule 35(1), (2) of the Civil Procedure Rules, seeking that the appeal herein be dismissed for want of prosecution and the costs of the application be borne by Appellants. It is premised on grounds that:
1. The memorandum of appeal was filed on 9th December, 2008 and over two years have lapsed since then.
2. The appellant has lost interest in the appeal, so it is only fair that the same be dismissed.
In the affidavit sworn by GITHUI JOHN in support of the application, it is deponed that the suit giving rise to the appeal was filed in the year 2006 and judgment delivered on 25th November 2008. After the appellants filed a memo of appeal in the year 2009, no steps have been taken towards preparing record of appeal, taking directions or even setting down the matter for hearing.
The application is opposed and the appellants have filed grounds of opposition stating that the application is premature as the subordinate court has not availed proceedings to enable the appellant prepare the record of appeal and take directions.
The hearing proceeded exparte – it is not disputed that since filing the memorandum of appeal two years ago, the appellants have not taken any other steps towards prosecuting the appeal. Although the court is being blamed for not availing proceedings to enable the appellants prepare the record of appeal, I have not seen a single correspondence from the appellants or their counsel, to the court, requesting for proceedings. The only reasonable inference I can draw is that this inactivity stems from a lack of interest on the part of the appellants. Consequently, there would be no justification in keeping this appeal pending – my finding is that the application is merited. The appeal filed herein is thus dismissed for want of prosecution.
Delivered and dated this 30th day of July, 2012 at Nakuru.
H.A. OMONDI
JUDGE