[2014] KEHC 7842 (KLR)
The court found that the appellant had not taken any credible or meaningful steps to prosecute the appeal since directions were given on 19th June 2009. The explanations offered by the appellant for the delay were not credible, as hearing dates can be fixed ex parte and hearing notices served thereafter. The court...
Source-derived case information.
- Citation
- [2014] KEHC 7842 (KLR)
- Parties
- Appellant: Kenya Wildlife Service; Respondent: Collins Odera
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 661 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenya Wildlife Service
Appellant
Collins Odera
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 appellant.
- 2 Whether the appellant provided credible reasons for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not taken any credible or meaningful steps to prosecute the appeal since directions were given on 19th June 2009. The explanations offered by the appellant for the delay were not credible, as hearing dates can be fixed ex parte and hearing notices served thereafter. The court concluded that there was inordinate and unexplained delay, and no sufficient cause had been shown to justify the failure to prosecute the appeal. Consequently, the application for dismissal for want of prosecution was allowed.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed with costs for want of prosecution.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL
HC. APPEAL NO. 661 OF 2005
KENYA WILDLIFE SERVICE ..............................APPELLANT
VERSUS
COLLINS ODERA ..........................................RESPONDENT
R U L I N G
1. The Respondent in this appeal seeks by notice of motion dated 22/08/2012 an order for dismissal of the appeal with costs for want of prosecution. The application is made under Order 42, rule 35 (without specifying which subrule) of the Civil Procedure Rules, 2010 (the Rules). Sections 1B (1) (d) and 3Aof the Civil Procedure Act, Cap 21have also been invoked.
2. The grounds for the application include the ground that since the issuance of directions on 19th June 2009 the Appellant has not taken any action to prosecute the appeal. There is a supporting affidavit sworn by the Respondent’s advocate, Joyce Lwande Oneko.
3. The Appellant has opposed the application by a replying affidavit filed on 11/10/2012. It is sworn by one Margaret Wairimu Ngugi, a court clerk with the Appellant’s advocates. Grounds of opposition that emerge therefrom include -
That in November 2009 the Appellant’s advocates wrote to the Respondent’s advocates inviting them to attend the registry for purposes of fixing the appeal for hearing, but that the letter could not be delivered because they had moved from their known physical address without leaving a forwarding address.
That another invitation was sent by post in March 2011, but that the registry declined to give a hearing date because there was no evidence of service of the invitation.
That an enquiry with the Law Society of Kenya disclosed the same old address of the Respondent’s advocates.
4. At the hearing of the application there was no appearance for the Appellant despite service. I have considered the submissions of the Respondent’s learned counsel. I have also considered what is averred in the replying affidavit.
5. It is an unlikely story that the Appellant or its advocates could not fix the appeal for hearing merely because a letter inviting the Respondent’s advocates to attend the registry for that purpose had not been delivered. Hearing dates are taken ex parte all the time and hearing notice served. In any event, why did it take another 1½ years before making another move to fix the appeal for hearing? And this time round, why was there no evidence of delivery of the invitation letter if indeed the registry declined to give a hearing date for want of such evidence?
6. The fact of the matter is that since directions were given on 19/06/2009 the Appellant has not taken any step to prosecute the appeal. No credible reason for this inordinate delay has been given.
7. In the circumstances I will allow the application as prayed. The appeal herein is dismissed with costs for want of prosecution. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 8th DAY OF MAY 2014
H.P.G. WAWERU
JUDGE
DELIVERED THIS 9TH DAY OF MAY 2014