[2018] KEHC 6079 (KLR)
The court found that the appellant had not taken any steps to prosecute the appeal for over three years and had not provided any correspondence or evidence to support the claim that it was impossible to fix the matter for hearing. The reasons advanced, such as the transfer of judges and registry difficulties, were...
Source-derived case information.
- Citation
- [2018] KEHC 6079 (KLR)
- Parties
- Appellant: Kipkebe Tea Company Limited; Respondent: Paul Nyakundi Nyamuga; Respondent: Kebirigo General Stores
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 208 & 215 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appellate Practice, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kipkebe Tea Company Limited
Appellant
Paul Nyakundi Nyamuga
Respondent
Kebirigo General Stores
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 inaction by the appellant.
- 2 Whether the reasons advanced by the appellant for delay are reasonable and sufficient to avoid dismissal.
Ratio Decidendi
The court found that the appellant had not taken any steps to prosecute the appeal for over three years and had not provided any correspondence or evidence to support the claim that it was impossible to fix the matter for hearing. The reasons advanced, such as the transfer of judges and registry difficulties, were deemed insufficient, as no proactive steps were shown by the appellant to overcome these challenges. The court emphasized that the responsibility to prosecute the appeal lies with the appellant, and the respondent is entitled to seek dismissal if the appellant is inactive. Consequently, the appeal was dismissed for want of prosecution, with costs awarded to the respondents.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- The appellant shall pay costs of Ksh. 15,000 to the respondents.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. 208 OF 2009
CONSOLIDATED WITH
CIVIL APPEAL NO. 215 OF 2009
BETWEEN
KIPKEBE TEA COMPANY LIMITED..........APPELLANT
AND
PAUL NYAKUNDI NYAMUGA .........1ST RESPONDENT
KEBIRIGO GENERAL STORES......2ND RESPONDENT
(Appeal from the Judgment and Decree of Hon. S. Wewa RM dated and delivered on 29th September 2009 by Hon. Kimutai SRM in Kisii CMCC No. 565 of 2000)
RULING
It is not in dispute from the record that no step has been taken by the appellant since 11th December 2015 when the Judge directed the parties to take steps to prosecute the matter until the application to dismiss the appeal was filed on 12th April 2018.
The appellant contends that the reason for failing to take steps is because of the transfer of Judges which has prevented appeals from progressing, that it has been difficult to get a date from the registry hence difficult to fix the matter and that it was the duty of both advocates to fix the matter for hearing.
The court in dismissing an appeal is called upon to exercise its discretion on the basis that the reasons for failure to prosecute the appeal have been explained. I note that this is a 2009 appeal and I do not find the reasons advanced reasonable as nothing has been shown that would have prevented the appellant from prosecuting the appeal. No letter was addressed to the Registry for the period of three (3) years expressing difficulty in prosecuting the appeal. The appeal belongs to the appellant and a respondent who is wary of waiting for an appellant to prosecute its appeal is entitled to apply for its dismissal.
This appeal is now dismissed for want of prosecution with costs of Ksh. 15,000/=.
D.S MAJANJA , J
19/6/2018
Court: Judgment read and delivered in open court.
D.S MAJANJA, J
19/6/2018