[2006] KEHC 1689 (KLR)
Although the appellant delayed in prosecuting the appeal and failed to file a certified copy of the decree as required by the Civil Procedure Rules, the applicant was also guilty of significant delay in serving the amended application and did not provide any explanation for this delay. The court found that it would...
Source-derived case information.
- Citation
- [2006] KEHC 1689 (KLR)
- Parties
- Appellant: James Oluoch; Respondent: Hamid Dine Abdi
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 137 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss/strike Out Appeal
- Outcome
- Appeal struck out for failure to file certified copy of decree. Costs to applicant.
- Legal Topics
- Dismissal for Want of Prosecution, Striking Out Appeal, Delay in Prosecution, Filing of Certified Decree
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Oluoch
Appellant
Hamid Dine Abdi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss/strike Out Appeal
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the appeal should be struck out for failure to file a certified copy of the decree as required by law.
Ratio Decidendi
Although the appellant delayed in prosecuting the appeal and failed to file a certified copy of the decree as required by the Civil Procedure Rules, the applicant was also guilty of significant delay in serving the amended application and did not provide any explanation for this delay. The court found that it would not be appropriate to dismiss the appeal for want of prosecution due to the applicant's own laches. However, since the appellant failed to file a certified copy of the decree, which is a mandatory requirement, the appeal was struck out. The costs of the application were awarded to the applicant.
Court Disposition
Appeal struck out for failure to file certified copy of decree. Costs to applicant.
Orders
- The appeal is hereby struck out for failure to file a certified copy of the decree.
- The appellant will meet the costs of this application.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
Civil Appeal 137 of 2002
JAMES OLUOCH …………………………………....... APPELLANT
- Versus -
HAMID DINE ABDI ……………………………………. RESPONDENT
Coram: Before Hon. Mr. Justice J. Njagi
Mr. Anyanzwa for Respondent/Applicant
Mr. Wameyo & Okumu for Appellant/Respondent
Court Clerk – Kinyua
R U L I N G
The application before the court is brought by way of an amended chamber summons dated 23rd September, 2004, and taken out under section 3A of the Civil Procedure Act, and Order XLI rules 1A, 8B and 31 of the Civil Procedure Rules. The applicant seeks orders that the appeal filed herein be dismissed for want of prosecution; that the appeal be struck out as no certified copy of the decree has been filed; and that costs of this application be provided for.
The application is supported by the annexed affidavit of the respondent/applicant sworn on 21st July, 2004 and further affidavit sworn on 24th September, 2004, and filed with the amended chamber summons on 27th September, 2004. It is based on the grounds that at the time of filing the application, almost two years had elapsed since the memorandum of appeal had been served on the respondent, and yet no certified copy of the decree had been filed since the filing of that memorandum. Consequently, the applicant has in the circumstances been denied the fruits of the judgment entered in his favour.
At the hearing of this application (before me,) Mr. Anyanzwa appeared for the applicant, but there was no attendance by or on behalf of the respondent. An affidavit of service sworn by Kennedy Kasamani and filed in court on 8th June, 2006, shows that the respondents were served on 5th May, 2006. As the respondents neither responded nor attended court, the application is, prima facie, unopposed. Unopposed as it is, however, it is subject to the following observations.
The application was first brought to court by way of a Notice of Motion dated 22nd July, 2004, and filed in court on 2nd August, 2004. On 19th August, 2004, it was fixed for hearing on 16th September, 2004. On the hearing date, justice Mwera recorded the following consent order –
“By consent, the Respondent/Applicant do file an amended Notice of Motion within 14 days from now. Appellant has 14 days to respond and then parties to fix hearing dates in the registry.”
The amended chamber summons was dated 23rd September and duly filed in court on 27th September, 2004, which was within the 14 days ordered by the court. However, according to Mr. Kasamani’s affidavit of service referred to herein above, the amended application was not served on the appellants until 5th May, 2006. That was a delay of more than 1 year and 7 months, and no explanation has been offered for it. This delay has in turn contributed to the four years delay which Mr. Anyanzwa is now complaining about.
Having noted that the applicant himself is equally guilty of laches, I don’t think that it would be appropriate to dismiss the appeal at this stage as prayed in prayer 1. However, as no certified copy of the decree has been filed, the appeal is hereby struck out in terms of prayer 2. The appellant will meet the costs of this application.
Dated and delivered at Mombasa this 7th day of July, 2006.
L. NJAGI
JUDGE