[2020] KEHC 5717 (KLR)
The court found that the appellants were unable to file their record of appeal within the stipulated time because the lower court file had not been availed to them, as previously directed by the court. The delay was therefore not attributable to any fault or inaction on the part of the appellants. Dismissing the...
Source-derived case information.
- Citation
- [2020] KEHC 5717 (KLR)
- Parties
- Appellant: Jesse Gichuru Mwangi; Appellant: Ndung’u Stephen; Respondent: Videlis Auma Wanyama & Christabelondeche Siro (suing as the Legal Representative of the late Witman Siro Maloba)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 243 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- CM Kamau
- Legal Topics
- Dismissal for Want of Prosecution, Record of Appeal Filing, Appellate Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jesse Gichuru Mwangi
Appellant
Ndung’u Stephen
Appellant
Videlis Auma Wanyama & Christabelondeche Siro (suing as the Legal Representative of the late Witman Siro Maloba)
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 failure by the appellants to file the record of appeal within the stipulated time.
- 2 Whether the appellants were prevented from filing the record of appeal due to lack of access to the lower court file.
Ratio Decidendi
The court found that the appellants were unable to file their record of appeal within the stipulated time because the lower court file had not been availed to them, as previously directed by the court. The delay was therefore not attributable to any fault or inaction on the part of the appellants. Dismissing the appeal in such circumstances would be unjust. The court accordingly dismissed the respondents' application for dismissal of the appeal for want of prosecution and directed the Deputy Registrar to comply with the earlier order to provide the necessary proceedings to the appellants. The appellants were further directed to fix a mention date within 160 days to monitor compliance,...
Court Disposition
application dismissed
Orders
- The respondents' Notice of Motion application dated 20th June 2019 is dismissed.
- Costs of the application will be in the cause.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 243 OF 2017
JESSE GICHURU MWANGI.......................................................1ST APPELLANT
NDUNG’U STEPHEN...................................................................2ND APPELLANT
VERSUS
VIDELIS AUMA WANYAMA & CHRISTABELONDECHE SIRO (suing as the
Legal Representativeof the late WITMAN SIRO MALOBA)....RESPONDENTS
RULING
1. On 21st June 2019, the Respondents filed a Notice of Motion application dated 20th June 2018 in which they had sought the dismissal of the Appellants’ Appeal for want of prosecution and further, for the release of the decretal sum that had been deposited in the account in the joint names of their advocate and those of the Appellants herein. They had sought the same orders as those of their Notice of Motion application dated 7th August 2018 and filed on 10th September 2019.
2. The said application was supported by the Affidavit of their advocate, Maloba Kiyaka, that was sworn on 20th June 2019. Their contention was that since the court directed the Appellants to file their Record of Appeal on 8th April 2019, they had not done so to date.
3. In opposition to the said application, on 13th September 2019, the Appellants filed Grounds of Opposition dated 11th September 2019. It was their further averment that they could not file a Record of Appeal as they had still been furnished with certified copies of the proceedings.
4. What was in contention herein was whether or not the court could dismiss the Appeal herein for failure by the Appellants to file their Record of Appeal within sixty (60) days of the court’s Ruling dated 8th April 2019 in which it declined to dismiss the Appellants’ Appeal for want of prosecution.
5. In Paragraph 38 of the said Ruling, this court had directed the Registrar of High Court of Kenya Milimani Law Courts Civil Division to place the proceedings in the file herein to enable the Appellants proceed with the Appeal herein.
6. In the absence of the lower court file herein, this court was satisfied that the Appellants could not file their Record of Appeal within the time stipulated in the said Ruling and it would be unfair to dismiss their Appeal herein.
DISPOSITION
7. For the foregoing reasons, the upshot of this court’s decision was that the Respondents’ Notice of Motion application dated 20th June 2019 and filed on 21st June 2019 was not merited and the same is hereby dismissed. Costs of the application will be in the cause.
8. The Deputy Registrar High Court of Kenya Milimani Law Courts Civil Division is hereby directed to comply with Paragraph 38 of this court’s Ruling of 8th April 2019 to enable the Appellants file their Record of Appeal. To monitor this matter, the Appellant is hereby directed to fix a mention date, at the Registry, in one hundred and sixty (160) days from the date of the Ruling herein. In the event the Appellants fail to do so, the Respondents will be at liberty to fix the matter for mention as aforesaid for further orders and/or directions.
9. It is so ordered.
DATED and DELIVERED at NAIROBI this 28th day of May2020
J. KAMAU
JUDGE