[2018] KEHC 8705 (KLR)
The court found that over two years had elapsed since the appeal was filed without any action by the appellant to prosecute it. The explanation provided for the delay, namely the missing court file, was not substantiated by evidence of efforts to notify the Deputy Registrar or reconstruct the file. The court held...
Source-derived case information.
- Citation
- [2018] KEHC 8705 (KLR)
- Parties
- Appellant: John Barasa Matifari; Respondent: Simon Wanjala Mabonga
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 41 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application allowed; appeal dismissed for want of prosecution with costs to the applicant.
- Judges
- SN Mukunya
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Duty of Parties, Appeals Process, Occupation of Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Barasa Matifari
Appellant
Simon Wanjala Mabonga
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 inordinate delay by the appellant.
- 2 Whether the delay in prosecuting the appeal was justified or explained.
Ratio Decidendi
The court found that over two years had elapsed since the appeal was filed without any action by the appellant to prosecute it. The explanation provided for the delay, namely the missing court file, was not substantiated by evidence of efforts to notify the Deputy Registrar or reconstruct the file. The court held that the appellant, being in occupation of the suit land, had an interest in delaying the appeal and that the delay was inordinate and unjustified. The duty imposed by Section 1A of the Civil Procedure Act requires parties to actively assist in the expeditious resolution of disputes. The failure to diligently prosecute the appeal warranted its dismissal for want of prosecution.
Court Disposition
Application allowed; appeal dismissed for want of prosecution with costs to the applicant.
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL APPEAL CASE NO. 41 OF 2015.
JOHN BARASA MATIFARI..........................................APPELLANT
VERSUS.
SIMON WANJALA MABONGA..............................RESPONDENT
RULING.
[1].This Notice of Motion is brought under order 42 rule 35 and order 51 rule 1 of the Civil Procedure Rules. The application prays that this court do dismiss the appeal herein for want of the prosecution.
[2]. The application is grounded on the fact that, it is almost two years since the appeal was filed and served. That the defendant has neglected to take any steps towards having this appeal finalized and that this appeal has caused a 2005 matter to remain unconcluded to the prejudice of the respondent who is ailing and who has suffered a stroke.
[3]. It was the argument of the applicant that the appeal was filed on 25/7/2015 and no steps has been taken to have the appeal heard. That the respondent wrote to the appellants on 22/7/2015 almost one year after the appeal was filed and that they did nothing. The respondent argue that they have not been able to use the suit land, the appellants being the ones in occupation. That they were the successful Litigants in the Lower Court and the Lower court file pends awaiting the result of the appeal.
[4]. The respondents replied and opposed the application. They alleged that they applied for the proceedings on 11/2/2015. That for seven months the court file went missing immediately after the Judgment was read. That they wrote a letter on 4th October, 2016. They argued that since the file went missing, the delay therein is not inordinate. The respondents said that they are in occupation since 1971 and that the plaintiff/respondent herein bought the land in 1995.
[5]. Since the appeal was filed a period of over two years has elapsed without any action being taken on the appeal. The respondent states that the court file went missing for a period of seven months. There was no letter shown written to the Deputy Registrar of this Court to allege that the file was missing or was lost over that period. There was no effort by the appellants to reconstruct the court file. Infact, the respondents were woken up by the applicants Letter of 22/7/2015.
[6]. Parties to any proceedings are mandated by Section 1A of the Civil Procedure Act to assist the court in facilitation of the just expeditious and proportionate and affordable resolution of the Civil disputes. They are also under a duty to do so. The litigants can no longer file a notice of appeal and/or an appeal and go to sleep. They should diligently pursue the same to its final conclusion.
[7]. I am not convinced that the delay herein is justified or can be explained. The appellant is in occupation of the suit land and it is in his interests that this appeal delays for as long as possible. The delay herein is inordinate and is not explained or justified.
I allow this application as prayed with costs.
It is so ordered.
Ruling read in Open Court before Mr. Kweyu.
Dated at Bungoma this 10th day of January, 2018.
S. MUKUNYA
JUDGE
In the presence of:
Chemutai - Court Assistant
Mr. Kweyu for Mr. Sichangi
Firm of Ocharo for the Respondent - Applicant