[2013] KEHC 956 (KLR)
The court found that while there had been some delay by the appellant in prosecuting the appeal, the delay was not inordinate or inexcusable. The appellant could not fix the appeal for hearing before the record was admitted and directions were given, and the delay was explained by the late provision of certified...
Source-derived case information.
- Citation
- [2013] KEHC 956 (KLR)
- Parties
- Appellant: Leaves (K) Limited; Respondent: Peter Ondimu Nyabwari
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 193 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed, appeal admitted
- Judges
- DA Onyancha
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Admission, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Leaves (K) Limited
Appellant
Peter Ondimu Nyabwari
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 appellant.
- 2 Whether the delay in prosecuting the appeal was justified by the appellant's explanation.
Ratio Decidendi
The court found that while there had been some delay by the appellant in prosecuting the appeal, the delay was not inordinate or inexcusable. The appellant could not fix the appeal for hearing before the record was admitted and directions were given, and the delay was explained by the late provision of certified proceedings by the court. The court held that the application to dismiss the appeal for want of prosecution lacked merit. However, to prevent further delay, the court admitted the appeal and ordered that it be prosecuted within eight months, failing which it would stand dismissed automatically.
Court Disposition
application dismissed, appeal admitted
Orders
- Application to dismiss for want of prosecution is dismissed with costs.
- The appellant shall prosecute the appeal within eight (8) months or the appeal shall automatically stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NUMBER 193 OF 2011
LEAVES (K) LIMITED. ................ APPELLANT/RESPONDENT
VERSUS
PETER ONDIMU NYABWARI. ......... RESPONDENT/APPLICANT
A R U L I N G
This application before the court is a Notice of Motion dated 14th August, 2012. It was filed by the Respondent/decree holder and seeks the dismissal of the appeal for want of prosecution.
The Appellant does not deny the fact that the appeal has not been set down for a hearing since the 3rd May, 2011, which is a period more than three months. It however, argues that the delay arose from the fact that the certified proceedings, judgment and orders, copy had not been availed to it by the court after the relevant requests had been made. It states that once the same were received after 29th August, 2012, the Appellant proceeded to bind, file and serve the record of Appeal. That it is now waiting for directions after admission of the appeal by court.
I have considered the appeal, keeping in mind that the Respondent has a decree whose fruits he is entitled to enjoy. However, the period since the decree was issued is not inordinately long. The Appellant could not also fix the appeal for a hearing before the same was admitted by the court and directions of the appeal be taken. While it may therefore be said that there has been a slow-down by the Appellant lately, it nevertheless cannot be argued that the Appellant has gone to sleep on.
In the circumstances this application has no merit and should be dismissed. Since the Record of Appeal has been filed however, the court will immediately admit the appeal and fix it for directions. Thereafter there should be no excuse for further delay.
Orders:
Application to dismiss for want of prosecution is hereby dismissed with costs.
The Appellant shall prosecute the appeal within eight (8) months or the appeal shall automatically stand dismissed.
The Appeal is hereby admitted to a hearing.
Dated and delivered at Nairobi the 27th day of November, 2013.
........................................
D A ONYANCHA
JUDGE