[2010] KEHC 3291 (KLR)
The court found that the delay in prosecuting the appeal was not due to the appellant's fault but rather the court's failure to provide the typed proceedings necessary for preparing the record of appeal. As such, the application to strike out the memorandum of appeal was dismissed. However, the appellant was...
Source-derived case information.
- Citation
- [2010] KEHC 3291 (KLR)
- Parties
- Appellant: Kimilili Hauliers; Respondent: Esther Jemutai Kiasaina
- Court
- High Court
- Court Station
- High Court at Eldoret
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 108 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal
- Outcome
- application dismissed with costs; conditional timeline for appellant to act or appeal stands dismissed
- Legal Topics
- Appeal Striking Out, Delay in Prosecution, Record of Appeal Preparation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimilili Hauliers
Appellant
Esther Jemutai Kiasaina
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Memorandum of Appeal
Legal Issues
- 1 Whether the appeal should be struck out as an abuse of court process due to inaction by the appellant.
- 2 Whether the delay in prosecuting the appeal is attributable to the appellant or to the court's failure to supply proceedings.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not due to the appellant's fault but rather the court's failure to provide the typed proceedings necessary for preparing the record of appeal. As such, the application to strike out the memorandum of appeal was dismissed. However, the appellant was directed to act promptly by requesting the proceedings from the Deputy Registrar and to set the appeal down for admission within three months, failing which the appeal would stand dismissed automatically.
Court Disposition
application dismissed with costs; conditional timeline for appellant to act or appeal stands dismissed
Orders
- The application filed on 16th September 2009 is dismissed with costs.
- The appellant must within three months from the date of this ruling prompt the Deputy Registrar to supply proceedings and set the appeal down for admission.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT ELDORET
Civil Appeal 108 of 2008
KIMILILI HAULIERS:……………………APPELLANT
VERSUS
ESTHER JEMUTAI KIASAINA:…….....RESPONDENT
RULING
The Applicant herein moves this court for Orders for striking out the Memorandum of Appeal as the same is an abuse of the court process and for the costs of the application. It is based on the grounds that the appeal was filed on 15/10/2008 and the Appellant has done nothing towards prosecuting the same which inaction is described as being an abuse of the process of the court.
In opposition to the application counsel for the Appellant/Respondent has sworn an affidavit stating that it is the court which has not typed the proceedings from which the Appeal arises and which has therefore not admitted the appeal to hearing as the record of Appeal cannot be prepared in the absence of the proceedings. Directions as to how the appeal is to proceed have also not been taken for the same reasons above.
As filed this application must fail as indeed the appeal is not ready for hearing. It is not denied that the Record of Appeal has not been prepared for the reasons that the proceedings have not been availed to the Appellant by the court. The Appellant must now move with speed to prompt the Deputy Registrar of the court to supply the proceedings and set the Appeal down for admission by the Judge in chambers. This the Appellant must do within THREE (3) MONTHS of the date of the delivery of this Ruling in default of which the Appeal shall automatically stand dismissed. The application filed in court on 16th September 2009 is in the meanwhile dismissed with costs.
DATED AND DELIVERED AT ELDORET THIS 25th DAY OF FEBRUARY 2010.
P.M.MWILU
JUDGE
IN THE PRESENCE OF:-
Paul Ekitela - Court Clerk
N/A for the Advocate for the Applicant
Mr. Manani holding brief for Nyairo Advocate for the Respondent.