[2011] KEHC 344 (KLR)
The court found that the appellants had demonstrated sufficient cause for the delay in prosecuting the appeal by providing evidence of their efforts to obtain the lower court record and comply with procedural requirements. The court accepted that the delay was not solely attributable to the appellants and that they...
Source-derived case information.
- Citation
- [2011] KEHC 344 (KLR)
- Parties
- Appellant: Joseph Nderitu; Appellant: Joseph Waithaka; Respondent: Samuel Odhiambo Oyamo
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 116 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appellants granted six months to prepare and set down the appeal for hearing; otherwise, appeal stands dismissed. Appellants to bear costs of the Notice to Show Cause.
- 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 Nderitu
Appellant
Joseph Waithaka
Appellant
Samuel Odhiambo Oyamo
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 due to inordinate delay.
- 2 Whether the appellants have provided sufficient cause for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellants had demonstrated sufficient cause for the delay in prosecuting the appeal by providing evidence of their efforts to obtain the lower court record and comply with procedural requirements. The court accepted that the delay was not solely attributable to the appellants and that they remained keen on prosecuting the appeal. Exercising its discretion, the court granted the appellants six months from the date of the ruling to prepare the record of appeal and set the matter down for hearing, failing which the appeal would stand dismissed. The appellants were ordered to bear the costs of the Notice to Show Cause.
Court Disposition
Appellants granted six months to prepare and set down the appeal for hearing; otherwise, appeal stands dismissed. Appellants to bear costs of the Notice to Show Cause.
Orders
- Appellants to prepare the record of appeal and set the appeal down for hearing within six months from the date of the ruling.
- If the appellants fail to comply, the appeal shall stand dismissed without further order.
Full Case Text
Judgment text and source record
19 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 116 OF 2009
JOSEPH NDERITU………………………………...1ST APPELLANT
JOSEPH WAITHAKA……………………………..2ND APPELLANT
VERSUS
SAMUEL ODHIAMBO OYAMO…………………...RESPONDENT
RULING
This appeal was filed on 19/6/2009. No steps had taken towards its prosecution for over 2 years and the court issued a Notice to Show Cause why it cannot be dismissed. Upon service of the Notice to Show Cause, counsel for the Appellant, John Njomo filed a replying affidavit. He blamed the Respondents for failing to co-operate in order to have the matter proceed to hearing. At paragraph 5 to 10 of the affidavit, counsel set out efforts made by the appellants’ counsel to have the decretal sum to be deposited in a joint fixed deposit account in accordance with a consent order recorded on 15/8/2009. It was not until 13/9/2011 that they managed to open the account. Counsel also deponed that he has been following up with Naivasha Law Courts with a view to obtaining copies of the relevant documents to enable them prepare the record of appeal.
He exhibited copies of letters dated 10/3/2010, 28/4/2011 (JN7 & 8) requesting for proceedings; that when they were supplied a copy of the decree and certified costs was omitted. In August 2011, he requested for the other documents (JN9) from Naivasha Law Courts and the Appellants were asked to pay further court fees. It was counsel’s contention that they have been ready and willing to prosecute the appeal and hence request for time to be allowed to prepare the record of appeal and have it heard on merit.
Mr. Moseti, counsel for appellants did not oppose the request. I have considered the replying affidavit and submissions by Mr. Njomo. He has exhibited documents to demonstrate that there has been an attempt to get the Lower court record for purposes of preparing the record of the appeal. The counsel has shown that they are still keen on prosecuting the appeal and the court will exercise its discretion in their appellant’s favour and allow them time to prepare the record of appeal and set it down for hearing within the next 6 months from today’s date, failing which the appeal will stand dismissed.
The Appellant to bear costs of the Notice to Show Cause.
DATEDand DELIVERED this 26th day of October, 2011.
R. P. V. WENDOH
JUDGE
PRESENT:
No appearance for Appellants
Mr. Moseti for Respondents
Court Clerk - Kennedy