[2009] KEHC 1465 (KLR)
The court found that the delay in prosecuting the appeal was due to a human error by the appellant's counsel, who mistakenly believed the decree had not been filed. The court determined that this error should not be visited upon the appellant, especially given the substantive property rights at stake. The interests...
Source-derived case information.
- Citation
- [2009] KEHC 1465 (KLR)
- Parties
- Appellant: John Matuku; Respondent: Alice Waithera
- Court
- High Court
- Court Station
- High Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 25 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appeal not dismissed; appellant given 21 days to set down appeal for hearing, failing which appeal stands dismissed.
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Record of Appeal Requirements, Property Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Matuku
Appellant
Alice Waithera
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI rule 31(2).
- 2 Whether the omission of the decree from the initial record of appeal constitutes sufficient cause for delay.
- 3 Whether the appellant's counsel's error should be visited upon the appellant.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was due to a human error by the appellant's counsel, who mistakenly believed the decree had not been filed. The court determined that this error should not be visited upon the appellant, especially given the substantive property rights at stake. The interests of justice would be better served by allowing the appeal to proceed rather than dismissing it for want of prosecution. The court therefore directed the appellant's counsel to take steps to set the appeal for hearing within twenty-one days, failing which the appeal would stand dismissed automatically.
Court Disposition
Appeal not dismissed; appellant given 21 days to set down appeal for hearing, failing which appeal stands dismissed.
Orders
- Appellant's counsel to take steps to set the appeal for hearing within twenty-one (21) days.
- In default of compliance, the appeal will stand dismissed without further recourse to the court.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MALINDI
CIVIL APPEAL 25 OF 2006
JOHN MATUKU ………..………………………….APPELLANT
VERSUS
ALICE WAITHERA ……………………………..RESPONDENT
RULING
This matter came up under Order XLI rule 31(2) which provides that “that 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 the Judge in chambers for dismissal. Mr. Mouko for the appellant offered an explanation to the effect that although they had filed the memorandum of appeal and even compiled and filed a record of appeal, they inadvertently left out the decree, which was subsequently extracted and they would now wish to file a supplementary record. Mr. Mouko pointed out that, this was a matter touching on property on which the appellant had already built his house and is residing there. He further submitted hat the appellant is willing to proceed with the appeal and that he (Mr. Mouko) was the one responsible for the error which he was apologetic about. Mr. Mouko undertook to take immediate steps to have the appeal heard.
Mr. Ole Kina for the respondent responded that counsel had failed to show cause in pointing out that judgment was read on 1-19-2006 and on 15-9-2006, counsel filed the memorandum of appeal.
On 19-9-07, the record of appeal was filed and it shows that page 81 that the decree was filed and is part of the record – even the index shows that the decree is part of the record and Mr. Ole Kina states that what Mr. Mouko is telling the court is not correct.
He also draws to the court’s attention the fact that the appeal is against a judgment given to a pauper and respondent’s counsel even wrote to appellant’s counsel on several occasions requesting him to take steps towards hearing of the appeal but they failed to do so.
In reply, Mr. Mouko admitted that respondent’s counsel had written to them once, shortly before he moved court to issue Notice to Show Cause about the appeal. So what was the reason for the inactivity? Mr. Mouko explains that he thought the decree had not been filed as it was extracted later and he still has the originals. So actually all steps had been taken and all that was left was for parties to take a hearing date. On 8-9-08 when the respondent’s advocate wrote to appellant’s counsel what appears to be a follow-up to an earlier letter dated 2-7-08 (which has not been filed in the court record), however there was a response by appellant’s counsel on 22-9-08 to the effect that they were waiting for lower court records so as to enable them have the file placed by the judge for directions. The Memorandum of Appeal and Record of Appeal were served on the respondent on 6 – 12- 2006 and 27-11-07 respectively – both were filed in court in September 2007.
It would seem Mr. Mouko was under the belief that the decree was not filed – I would like to believe it was a human error of judgment on his part, which should not be visited on the appellant.
To my mind, the ends of justice will be better served by giving appeal a chance to ventilate her appeal rather than dismissing it. I therefore direct that appellant’s counsel must take steps towards taking a date for hearing of the appeal within the next twenty one (21) days in default of which the appeal will stand dismissed without further recourse to this court.
Dated and delivered this 11th day of June 2009.
H. A. Omondi
JUDGE
Mr. Ole Kina for applicant
Mr. Gekanana holding brief for Mr. Mouko for respondent