[2019] KEHC 3443 (KLR)
The court found that the appellants had failed to take any steps to compile the record of appeal or prosecute the appeal for over four years. This delay was deemed unreasonable and unjustified. The court emphasized that justice delayed is justice denied, and that the respondent should not be restrained from enjoying...
Source-derived case information.
- Citation
- [2019] KEHC 3443 (KLR)
- Parties
- Appellant: Kamakei Kaleke; Appellant: Kashu Kaleke; Appellant: Sidei Kaleke; Respondent: Tupana Ololoisiong’a
- Court
- High Court
- Court Station
- High Court at Narok
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 11 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application allowed; appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeals Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kamakei Kaleke
Appellant
Kashu Kaleke
Appellant
Sidei Kaleke
Appellant
Tupana Ololoisiong’a
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellants.
- 2 Whether the delay in compiling and prosecuting the appeal is unreasonable and prejudicial to the respondent.
Ratio Decidendi
The court found that the appellants had failed to take any steps to compile the record of appeal or prosecute the appeal for over four years. This delay was deemed unreasonable and unjustified. The court emphasized that justice delayed is justice denied, and that the respondent should not be restrained from enjoying the fruits of the lower court judgment due to the appellants' inaction. As the application was unopposed and the delay was substantial, the court allowed the application and dismissed the appeal for want of prosecution.
Court Disposition
application allowed; appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CIVIL APPEAL NO. 11 OF 2015
KAMAKEI KALEKE....................................1ST APPELLANT/RESPONDENT
KASHU KALEKE.........................................2ND APPELLANT/RESPONDENT
SIDEI KALEKE............................................3RD APPELLANT/RESPONDENT
VERSUS
TUPANA OLOLOISIONG’A............................RESPONDENT/DEFENDANT
(Being an appeal from the judgement and decree delivered on 28th July 2015
by Hon.T.A. SITATI (MRS), SRM, in the Chief Magistrate’s Court in Civil
Case No. 75 of 2013, Tupana Ololoisiang’a v Kamakei Kaleke, Kashu Kaleke & Sidei Kaleke)
RULING
1. The respondent/applicant has filed this motion pursuant to the provisions of Order 42 Rules 35 (2) and Order 50 Rule 50 Rule 1 of the 2010 Civil Procedure Rules; in which he has sought dismissal of this appeal for want of prosecution and costs of this application.
2. The application is supported by eleven grounds that are set out on the face of the notice of motion and an 11 paragraphs supporting affidavit of the applicant.
3. The major grounds in support of the application are as follows. The appellants filed an incomplete record of appeal on 27th August 2015 against the magisterial judgement that was delivered on 28th July 2015. For the past four years now, the appellants have not taken any steps to compile a complete record of appeal, which has delayed the appeal. As a result of the filing of the appeal, the lower court file was brought to the High Court registry and placed in the High Court appeal file. It is now over four years and the appellants have not yet taken any steps towards setting down the appeal for directions. Furthermore, although there are no stay orders, it has been difficult to execute as the file is still with the High Court file.
4. Furthermore, the appellants’ conduct is wanting and is unjust for the applicant to be restrained from the fruits of the lower court judgement. The delay in prosecuting the appeal is unreasonable and the applicant stands to endure prolonged suffering and 2019 marks six years of suffering and frustration.
5. The affidavit is a replica of the grounds that are set out on the face of the notice of motion and is unnecessary to reproduce them.
6. Counsel for the appellant/respondents was served with notice of mention dated 24th June 2019: see affidavit of service filed in court on 21st June 2019. The proceedings therefore were conducted in the absence of the appellant/respondents.
The application is therefore unopposed.
7. I find that this appeal has been pending without the appellant/respondents taking any steps to complete the compilation of the record of appeal for now over four years. I find the delay to be unreasonable. It is to be borne in mind that justice delayed is justice denied.
8. The upshot of the foregoing is that the application succeeds. I therefore allow it with no order as to costs.
Ruling signed, dated and delivered in open court at Narok this 3rd day of October, 2019 in the absence of the appellants and in the presence of the respondents.
J. M. Bwonwonga
Judge
3/10/2019