[2022] KEHC 14501 (KLR)
The court found that while the appellants had not demonstrated diligence in following up on their request for proceedings, judgment, and decree from the lower court, the drastic step of dismissing the appeal for want of prosecution should be a last resort. The court emphasized the importance of allowing parties to...
Source-derived case information.
- Citation
- [2022] KEHC 14501 (KLR)
- Parties
- Appellant: Newton Kiogora; Appellant: Derrick Mutuma Kinyua; Respondent: Kelvin Mwangi Mbura
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E060 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application for dismissal of appeal disallowed; directions issued for filing and serving record of appeal.
- Judges
- TW Cherere
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Newton Kiogora
Appellant
Derrick Mutuma Kinyua
Appellant
Kelvin Mwangi Mbura
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellants in filing the record of appeal.
- 2 Whether the appellants have provided sufficient justification for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that while the appellants had not demonstrated diligence in following up on their request for proceedings, judgment, and decree from the lower court, the drastic step of dismissing the appeal for want of prosecution should be a last resort. The court emphasized the importance of allowing parties to be heard on merit. Consequently, the application for dismissal was disallowed, but the appellants were ordered to file and serve the record of appeal within 30 days to avoid further delay.
Court Disposition
Application for dismissal of appeal disallowed; directions issued for filing and serving record of appeal.
Orders
- Respondents to file and serve the record of appeal not later than 30 days from the date of the ruling.
- Mention on 15th December, 2022 to confirm compliance and for further orders.
Full Case Text
Judgment text and source record
24 paragraphs
Kiogora & another v Mbura (Civil Appeal E060 of 2021) [2022] KEHC 14501 (KLR) (27 October 2022) (Ruling)
Neutral citation: [2022] KEHC 14501 (KLR)
Republic of Kenya
In the High Court at Meru
Civil Appeal E060 of 2021
TW Cherere, J
October 27, 2022
Between
Newton Kiogora
1st Appellant
Derrick Mutuma Kinyua
2nd Appellant
and
Kelvin Mwangi Mbura
Respondent
Ruling
1. This appeal was filed on May 5, 2021and to date it has not been prosecuted. By notice of motion dated May 25, 2022, Applicant seeks that the appeal be dismissed for want of prosecution. The application is based on ground on its face and on the supporting affidavit sworn on May 25, 2022by Joel Mutuma, advocate for the applicant who avers mainly that the pendency of the appeal is denying Applicant the fruits of his judgment.
2. In his response vide a replying affidavit sworn on July 6, 2022, Lawrence Njuguna, advocate avers that the delay in compiling the record of appeal has been caused by the lower court’s failure to supply the same inspite of a request for proceedings, judgment and decree by a letter dated June 14, 2021.
3. I have considered the application in the light of the affidavits on record and annexures thereto.
4. Whereas there is evidence that the letter dated June 14, 2021requesting for proceedings, judgment and decree was received by Nkubu Court on June 21, 2021, more than a year later, it has not been demonstrated by respondents that a follow up to that letter has been made.
5. Clearly, the respondents have not been diligent. The foregoing notwithstanding, it should be the court’s last resort to deny a party a chance to be heard on merit.
6. Consequently, the call for dismissal of the appeal is disallowed with orders that Respondents file and serve the record of appeal not later than 30 days from today’s date.
7. Mention on 15th December, 2022 to confirm compliance with the abovementioned orders and for further orders
DATED AT MERU THIS 27TH DAY OF OCTOBER 2022WAMAE.T. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellants/Respondents - Mr. Njuguna for Kimondo Gachoka & Co. AdvocatesFor Respondent/Applicant - Mr. Mutuma for Mutuma & Koskei Advocates