[2015] KEHC 3874 (KLR)
The court found that although the appellants had delayed in prosecuting the appeal and could have been more diligent in following up on the proceedings, the fact that the court file had been misplaced was a significant factor outside their control. The existence of a letter requesting certified proceedings and...
Source-derived case information.
- Citation
- [2015] KEHC 3874 (KLR)
- Parties
- Appellant: Lchoro Le Lekolol Self Help Group (Through Chairman Stanley Kepende Lenyakopiro); Appellant: David Kimani Ndung'u; Respondent: Gems and Industrial Mineral Limited
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 110 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- suit not dismissed; appellants granted time to comply with directions
- Judges
- FM Njoroge
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure, Court Records Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lchoro Le Lekolol Self Help Group (Through Chairman Stanley Kepende Lenyakopiro)
Appellant
David Kimani Ndung'u
Appellant
Gems and Industrial Mineral Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the suit should be dismissed for want of prosecution due to delay by the appellants.
- 2 Whether the appellants have shown sufficient cause for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that although the appellants had delayed in prosecuting the appeal and could have been more diligent in following up on the proceedings, the fact that the court file had been misplaced was a significant factor outside their control. The existence of a letter requesting certified proceedings and confirmation by both parties that the file was misplaced justified granting the appellants the benefit of doubt. Consequently, sufficient cause was shown to prevent dismissal for want of prosecution. The court exercised its discretion to allow the suit to proceed, subject to the appellants taking specific steps within set timelines to demonstrate their intention to prosecute the...
Court Disposition
suit not dismissed; appellants granted time to comply with directions
Orders
- The appellants to follow up the issue of typed and certified proceedings within 30 days and the Executive Officer of the Court is directed to facilitate the process.
- The appellants to show evidence that their intended appeal is active or have the suit listed for hearing within 60 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 110 OF 2012
LCHORO LE LEKOLOL SELF HELP GROUP
(Through Chairman STANLEY KEPENDE LENYAKOPIRO...............1ST APPELLANT
DAVID KIMANI NDUNG'U...............................................................2ND APPELLANT
VERSUS
GEMS AND INDUSTRIAL MINERAL LIMITED....................................RESPONDENT
(An appeal Against the Ruling of Moses N. Masibo – Commissioner of Mines and Geology In the Matter of Lchoro Le Lekolol Self Help Group and Gems and Industrial Mineral Limited)
R U L I N G
Notice to show cause why this suit should not be dismissed for want of prosecution had been issued for parties to show cause on 15. 1.2015. The parties showed cause on 5. 5.2015.
Mr. Karweru told the court that he had applied for proceedings to appeal against the ruling delivered by this court on 4. 7.2013. So far the proceedings have not been availed to him. I do find that the court file has a letter dated 12. 7.2013 written by the firm of Karweru, & Co. Advocates asking that certified copies of the proceedings be availed to the firm. I also find in the court file a Notice of Address for Service filed by the firm of Kairu & McCourt for the respondent, which notice indicated that the firm of Kairu MacCourt had received a Notice of Appeal from the firm of Karweru & Co. Advocates.
Mr. Murithi supported the dismissal of the suit. He said that the appellants had been indolent and that since 2012, they had not prosecuted their case. Regarding the appellants' application to be availed with a copy of the proceedings to enable them appeal against this court's ruling delivered on 4th day of July, 2013, Mr. Murithi submitted that the appellants ought to have followed up the matter.
I have considered the parties submissions. I do agree with Mr. Murithi that the appellants ought to have followed up the issue of obtaining typed and certified proceedings. It is not enough to blame this court's Deputy Registrar.
On 9. 4.2015 Mr. Murithi told this court that the file for this suit had been misplaced. On 5. 5.2015, Mr. Karweru for the appellants confirmed this position. I find that this reality alone merits the granting of the benefit of doubt to the appellants. In the circumstances, I find that sufficient cause has been shown to convince this court that this suit should not be dismissed for want of prosecution. I issue the following orders:
The appellants to follow up the issue of typed and certified proceedings within 30 days and in this respect the Executive Officer of this Court is directed to facilitate the apposite process.
The appellants either show evidence that their intended appeal is active or proceed to have this suit listed for hearing within 60 days.
It is so ordered.
Delivered in Open court at Meru this 5th day of May, 2015 in the presence of:
Cc. Daniel/Lilian
Karweru for Appellants
Murithi h/b Mc Court for Respondent
P. M. NJOROGE
JUDGE