[2005] KEHC 3017 (KLR)
The court found that although the appellant had not taken further steps as previously ordered, the delay in prosecuting the appeal was primarily due to the lower court's failure to provide the original file and proceedings despite multiple requests by the Deputy Registrar. The court held that it would not be just to...
Source-derived case information.
- Citation
- [2005] KEHC 3017 (KLR)
- Parties
- Appellant: Law Society of Kenya Limited; Respondent: Peter Muiruri Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 257 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Appeal for Want of Prosecution
- Outcome
- application to strike out appeal disallowed
- Judges
- ARM Visram
- Legal Topics
- Appeal Striking Out, Want of Prosecution, Record of Appeal, Court Orders Compliance
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Law Society of Kenya Limited
Appellant
Peter Muiruri Kimani
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be struck out for want of prosecution due to delay in filing and serving the Record of Appeal.
- 2 Whether the appellant's failure to comply with previous court orders warrants dismissal of the appeal.
Ratio Decidendi
The court found that although the appellant had not taken further steps as previously ordered, the delay in prosecuting the appeal was primarily due to the lower court's failure to provide the original file and proceedings despite multiple requests by the Deputy Registrar. The court held that it would not be just to strike out the appeal and penalize the appellant for circumstances largely beyond their control. The application to strike out the appeal was therefore disallowed, with no order as to costs. The court further directed the Executive Officer of the Milimani Commercial Court to forward the requested documents within 30 days, and ordered the appellant to file and serve the Record...
Court Disposition
application to strike out appeal disallowed
Orders
- Application dated 22nd November, 2004 is disallowed with no order as to costs.
- Executive Officer, Milimani Commercial Court to forward requested documents within 30 days.
Full Case Text
Judgment text and source record
10 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO 257 OF 2003LAW SOCIETY OF KENYA LIMITED ………...……… APPELLANT
VERSUSPETER MUIRURI KIMANI …………………………… RESPONDENT
RULING
This is an application to strike out the appeal for want of prosecution. The Memorandum of Appeal was filed on 2nd May, 2003. Since then, at the request of the Appellant’s advocates, several letters have been written by the Deputy Registrar to the lower court asking for the Record of Proceedings and the original file. These requests were made on 2nd May, 2003, 31st October, 2003, 17th November, 2003, 7th January, 2004 and 13th May, 2004. However, the original file and the record have not been forthcoming, and as such the Record of Appeal has not been filed and served on the Respondent. The latter, tired of waiting indefinitely asked the Deputy Registrar to issue a Notice to Show Cause why this appeal should not be dismissed under Order 41 Rule 31 (2).
When Counsels appeared before this Court on 24th September, 2004 I made orders requiring the Appellant to take active steps to obtain the proceedings. This required them to pursue the matter with the Deputy Registrar, through further reminders. It seems that they have taken no further steps, and although technically in breach of the court order, considering the history of this matter, it would not be just to penalize them by striking out this appeal. Accordingly, I disallow the application dated 22nd November, 2004 with no order as to costs, and further order that the Executive Officer, Milimani Commercial Court do forward to this Court the documents already requested by the Deputy Registrar in the aforesaid letters within the next 30 days, and that the Appellants file and serve their Record within 30 days of delivery to them of the Record.
Dated and delivered at Nairobi this 15th day of February, 2005.
ALNASHIR VISRAM JUDGE