[2015] KEHC 3862 (KLR)
The court found that while the appellant had been indolent in prosecuting the appeal, the interests of justice required that the appellant be given an opportunity to prosecute the case. The court acknowledged the appellant's efforts in filing the record of appeal and writing to the Deputy Registrar, but emphasized...
Source-derived case information.
- Citation
- [2015] KEHC 3862 (KLR)
- Parties
- Appellant: John Nduati Mugo; Appellant: Kisumu Swan Carriers; Respondent: Hussein Ali (a minor suing thro his mother as next friend) Hawo Ali Guyo
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 141 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appeal not dismissed; directions issued for prosecution of appeal.
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Appellate Procedure, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Nduati Mugo
Appellant
Kisumu Swan Carriers
Appellant
Hussein Ali (a minor suing thro his mother as next friend) Hawo Ali Guyo
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 17 Rule 2 of the Civil Procedure Rules.
- 2 Whether the appellant has demonstrated diligence in prosecuting the appeal.
Ratio Decidendi
The court found that while the appellant had been indolent in prosecuting the appeal, the interests of justice required that the appellant be given an opportunity to prosecute the case. The court acknowledged the appellant's efforts in filing the record of appeal and writing to the Deputy Registrar, but emphasized that it remained the appellant's duty to ensure the Lower Court's file was annexed and the appeal set down for hearing. The court therefore declined to dismiss the appeal at this stage, instead issuing directions to facilitate prosecution of the appeal within specified timelines, failing which the appeal would be liable to dismissal.
Court Disposition
Appeal not dismissed; directions issued for prosecution of appeal.
Orders
- The appellant to follow up with the Deputy Registrar for annexation of the Lower Court's file within 30 days.
- The Deputy Registrar to have the Lower Court's file annexed to this file within 30 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MERU
CIVIL APPEAL NO. 141 OF 2009
JOHN NDUATI MUGO..........................................1ST APPELLANT
KISUMU SWAN CARRIERS..................................2ND APPELLANT
VERSUS
HUSSEIN ALI (A minor suing thro his mother as next friend)
HAWO ALI GUYO....................................................RESPONDENT
R U L I N G
A notice had been issued on 16. 3.2015 for the parties to show cause why this suit should not be dismissed for want of prosecution in terms of order 17 Rule 2 of the Civil Procedure Rules. Cause was to be shown on 13. 4.2015.
On 13. 4.2015, Mr. Mwenda, holding brief for Mr. Manthi for the appellant told the Court that the matter could not proceed to be heard as the Lower Court's file had not been forwarded to this Court to enable the Court to admit the appeal. He told court that several letters had been written to the Deputy Registrar. Mr. Mwenda told the Court that the fact that the appellant had filed his record of appeal was evidence of his seriousness in pursuing this appeal. He asked the Court to order that the Lower Court's file be annexed to the Appeal file.
Mr. Muthomi for the Respondent asked the Court to dismiss the appeal as the respondent had been denied the fruits of his Judgment for 5 years without reasonable cause. He submitted that it was the appellant's duty to pursue his case.
I am inclined to agree with Mr. Muthomi that the appellant has been indolent. It is always the primary duty of a plaintiff or an appellant to ensure that the hearing and determination of a suit proceeds diligently. However, in the interests of justice, I find it necessary to allow the appellant to prosecute his case. I issue the following orders.
1. The appellant to follow up with the Deputy Registrar annexation of the Lower Court's file to this file within 30 days of today.
2. The Deputy Registrar to have the Lower Court's file annexed to this file within 30 days.
3. The appellant to have his appeal set down for hearing within 60 days of today failing which this court will be at liberty to dismiss this suit in accordance with the Notice to Show Cause dated 16th March, 2015 issued to the parties.
It is so ordered.
Delivered in Open Court at Meru this 22nd day of April 2015 in the presence of:
Cc. Daniel
Muthomi present for Respondent
Murango Mwenda h/b Manthi Masika for the Appellant
P. M. NJOROGE
JUDGE