[2012] KEHC 994 (KLR)
The court found that the explanation provided by the appellant's counsel for the delay in prosecuting the appeal was unsatisfactory, particularly as there was no evidence annexed to support the claim of delayed receipt of typed proceedings. However, since the appellant had now expressed willingness to prosecute the...
Source-derived case information.
- Citation
- [2012] KEHC 994 (KLR)
- Parties
- Appellant: Kenneth Mbae Charles; Respondent: Carzan Flowers (K) Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 312 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appeal not dismissed; appellant given six months to set down appeal for hearing, failing which it stands dismissed.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Record of Appeal, Duty to Prosecute, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Mbae Charles
Appellant
Carzan Flowers (K) 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 explanation for delay in prosecuting the appeal is satisfactory.
Ratio Decidendi
The court found that the explanation provided by the appellant's counsel for the delay in prosecuting the appeal was unsatisfactory, particularly as there was no evidence annexed to support the claim of delayed receipt of typed proceedings. However, since the appellant had now expressed willingness to prosecute the appeal and had paid the requisite legal fees, the court exercised its discretion to grant the appellant a final opportunity to set down the appeal for hearing within six months. Failure to do so would result in automatic dismissal of the appeal. The appellant was ordered to bear the costs of the Notice to Show Cause.
Court Disposition
Appeal not dismissed; appellant given six months to set down appeal for hearing, failing which it stands dismissed.
Orders
- The appeal to be set down for hearing and heard within the next 6 months, failing which it stands dismissed.
- The appellant to bear costs of the Notice to Show Cause.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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KENNETH MBAE CHARLES ............................................. APPELLANT
VERSUS
CARZAN FLOWERS (K) LIMITED ............................... RESPONDENT
RULING
This appeal was filed on 7/12/2010. Since then the appellant has not taken any steps towards its prosecution. The court issued a Notice 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, counsel for the appellant, Mark Nganga Githiru, filed a replying affidavit. He stated that there was a delay in typing proceedings of the lower court and this rendered it impossible to prepare a record of appeal. He received a copy of the typed proceedings in April 2012 and by that time, the appellant had relocated to Naivasha without giving his new address nor did he leave instructions with his counsel. This further delayed the preparation of the record of appeal. Through the appellant's relatives, Mr. Githiru managed to get in contact with appellant who indicated his intention to prosecute the appeal. He also paid the requisite legal fees.
Mr. Ochieng for the respondent urged court to dismiss the appeal.
I have considered the replying affidavit of Mr. Githiru and the reasons given for the delay in filing the record of appeal and setting down the appeal for hearing. He stated that on 19/09/2012 he received a letter dated 30/4/2012 from the court, notifying him that the proceedings of the lower court had been typed. He however did not annex the said letter to support this averment despite purporting to have done the same. I therefore hold that the explanation given by counsel for the delay in receiving the typed proceedings is not satisfactory. Mr. Githiru further deponed that he had lost contact with the appellant and was unable to receive instruction necessary for the prosecution of the appeal. In Bi-Mach Engineers Limited Vs James Kahoro Mwangi (Civil Application No. 15 of 2011) Waki J said that the applicant has a duty to pursue his advocates to find out the position of the litigation. This in turns means that though counsel lost contact with the appellant, it was the duty of the appellant to pursue his advocate on the progress of his matter.
Since counsel for the appellant deponed that the appellant was ready and willing to conclude the appeal and that the appellant had availed the requisite funds, the court directs that this appeal be set down for hearing and be heard within the next 6 months failing which it stands dismissed.
The appellant to bear costs of the Notice to Show Cause.
DATED and DELIVERED this 14th day of November, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Ms Mukunga holding brief for Mr. Githiru for the appellant
N/A for the respondent
Kennedy – Court Clerk