[2019] KEHC 1852 (KLR)
The court found that the application for dismissal of the appeal was unchallenged, as neither the appellant nor the respondent filed any response or submissions or attended court for the highlighting of submissions. In the absence of any opposition, and considering the inordinate delay in prosecuting the appeal, the...
Source-derived case information.
- Citation
- [2019] KEHC 1852 (KLR)
- Parties
- Appellant: Kenga Chengo Kasisi; Respondent: Said Sood Mohamed Shikely (Suing on behalf of the estate of the late Sood Mohamed Said Shikely); Interested Party: Faraj Ahmed Salim Msaad
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 118 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Non Attendance, Directions and Hearing, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenga Chengo Kasisi
Appellant
Said Sood Mohamed Shikely (Suing on behalf of the estate of the late Sood Mohamed Said Shikely)
Respondent
Faraj Ahmed Salim Msaad
Interested Party
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 inaction by the appellant.
- 2 Whether the interested party is prejudiced by the continued pendency of the appeal.
Ratio Decidendi
The court found that the application for dismissal of the appeal was unchallenged, as neither the appellant nor the respondent filed any response or submissions or attended court for the highlighting of submissions. In the absence of any opposition, and considering the inordinate delay in prosecuting the appeal, the court exercised its discretion to allow the application as presented and dismissed the appeal for want of prosecution with costs to the interested party.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal filed on 12th June, 2017 is dismissed for want of prosecution with costs to the interested party.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MOMBASA
CIVIL APPEAL NO. 118 OF 2017
KENGA CHENGO KASISI ............................................................APPELLANT
VERSUS
SAID SOOD MOHAMED SHIKELY (Suing on behalf of the estate of the late
SOOD MOHAMED SAID SHIKELY.........................................RESPONDENT
MAHMOUD OSMAN HIRSI .......................................................PURCHASER
RULING
1 The Appellant, who was the Defendant in RMCC No. 1226 of 2002, filed an appeal against the ruling by Hon. Yator on 12th November, 2003 on 12th June, 2017.
2 And on 9th November, 2018, FARAJ AHMED SALIM MSAAD, vide a Notice of Motion dated 5th November, 2018, appealed to be enjoined as an interested party to the appeal . The application was not opposed and FARAJ AHMED SALIMMSAAAD was enjoined as and interested party to the appeal and allowed to file his pleadings accordingly on 5th March, 2019.
3 The interested party in the chamber summons application dated 5th November , 2018 sought for the dismissal of the appeal herein for want of prosecution on the grounds that;
(a) the appeal had not been set down for directions and or hearing since it was filed two years ago;
(b) the applicant has lost interest in having the appeal prosecuted;
(c) the interested party is suffering detriment as the appellant is using the appeals existence as a defence to the interested party’s plaint against the applicant for eviction orders and to defeat justice.
4 On 9th April, 2019, the counsel for the parties were given directions on how to dispense of the said application and highlighting of their written submissions fixed for 3. 6.2019. And on this day, only counsel for the interested party had complied with the directions of 9th April, 2019. Also, neither the applicant nor respondent attended court for the highlighting. The court then set down a ruling date for the application.
5 In determining the application dated 5. 11. 2018, I find that same is unchallenged as neither the applicant nor the Respondent filed a response or submissions to the application. In the circumstances, I proceed to find that the chamber summons dated 5th November, 2018 being unopposed, is allowed as presented.
6 The appeal filed on 12th June, 2017 be and is hereby dismissed for want of prosecution with costs to the interested party.
It is so ordered.
Ruling is delivered this 25th day of June, 2019.
LADY JUSTICE D. O. CHEPKWONY