[2012] KEHC 313 (KLR)
The court found that although the appellant failed to provide stamped evidence of requests for typed proceedings, he demonstrated continued interest in prosecuting the appeal by appearing and explaining the delay. The court exercised its discretion to allow the appeal to proceed, directing the Executive Officer to...
Source-derived case information.
- Citation
- [2012] KEHC 313 (KLR)
- Parties
- Appellant: Joseph Mwangi Mbugua; Respondent: Crown Foods Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 229 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Conditional continuation of appeal; not dismissed at this stage.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Record Preparation, Court Discretion, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Mwangi Mbugua
Appellant
Crown Foods Limited
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 42 Rule 35(2) of the Civil Procedure Rules.
- 2 Whether the appellant has provided sufficient cause for the delay in prosecuting the appeal.
- 3 Whether the court should exercise its discretion to allow the appeal to proceed.
Ratio Decidendi
The court found that although the appellant failed to provide stamped evidence of requests for typed proceedings, he demonstrated continued interest in prosecuting the appeal by appearing and explaining the delay. The court exercised its discretion to allow the appeal to proceed, directing the Executive Officer to provide the typed proceedings within 30 days and requiring the appellant to prepare the record and set the appeal down for hearing within 90 days of receiving the proceedings. Failure to comply would result in automatic dismissal of the appeal. The appellant was ordered to bear the costs of the Notice to Show Cause.
Court Disposition
Conditional continuation of appeal; not dismissed at this stage.
Orders
- The Executive Officer to avail to the appellant the typed proceedings of the lower court in Nakuru CMCC No. 1221 of 2006 within 30 days from the date hereof.
- The appellant to prepare the record, take directions, and set down the appeal for hearing within 90 days from the date of receipt of the typed proceedings, failing which the appeal will stand dismissed.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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JOSEPH MWANGI MBUGUA ............................................. APPELLANT
VERSUS
CROWN FOODS LIMITED ............................................... RESPONDENT
RULING
This appeal was filed on 24/8/2010. Since then the appellant has not taken any steps towards its prosecution. The court issued a Notice on the appellant to Show Cause why the appeal cannot be dismissed under, Order 42 Rule 35 (2) of the Civil Procedure Rules. Upon service of the Notice to Show Cause, the appellant, Joseph Mwangi Mbugua, filed a replying affidavit. He deponed that judgment of the lower court was determined in his favor but he was dissatisfied with its terms. He instructed his advocate to file an appeal which he duly obliged. However there has been a delay in obtaining the typed proceedings of the lower court and this rendered it impossible to prepare a record of appeal. He was advised by his advocate that this court has the discretion to direct that the proceedings be prepared and the appeal set down for hearing. He prays to be allowed to proceed with the appeal as the long delay has prejudiced him from enjoying the fruits of the judgment.
I have considered the replying affidavit of Mr. Mwangi and the reasons given for the delay in filing the record of appeal and setting down the appeal for hearing. Mr. Gekonge, counsel for the appellant, exhibited letters written to the Chief Magistrate, Nakuru, requesting to be supplied with the typed proceedings. The letters do not bear the stamp of the court and there is no evidence that such letters were received by the court. The appellant has now shown that he is still interested in the prosecution of the appeal. Since they have appeared, the court will exercise its discretion and direct that the Executive Officer do avail to the appellant the typed proceedings of the lower court in Nakuru CMCC No. 1221 of 2006 within 30 days from the date hereof and the appellant do prepare the record, take directions and set down the appeal for hearing with 90 days from the date of receipt of the typed proceedings failing which the appeal will stand dismissed.
The appellant to bear costs of the Notice to Show Cause.
DATED and DELIVERED this 7th day of December, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Odhimabo holding brief for Mr. Gekongafor the appellant
N/A for the respondent
Kennedy – Court Clerk