[2014] KEHC 4722 (KLR)
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal since its filing in 2006, including failing to file the record of appeal despite being ordered to do so by the Deputy Registrar. The appellant's explanation for the delay was found inadequate, as she had not...
Source-derived case information.
- Citation
- [2014] KEHC 4722 (KLR)
- Parties
- Appellant: Lois Towon; Respondent: Abdi Mohammed
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 20 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution with costs to the respondent
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Record of Appeal, Inherent Jurisdiction
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lois Towon
Appellant
Abdi Mohammed
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the appellant has provided sufficient cause for the delay in filing the record of appeal.
Ratio Decidendi
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal since its filing in 2006, including failing to file the record of appeal despite being ordered to do so by the Deputy Registrar. The appellant's explanation for the delay was found inadequate, as she had not demonstrated diligence in following up on the proceedings or instructing her counsel. The court held that the continued pendency of the appeal was unjust to the respondent and that the appellant had lost interest in the matter. Exercising its inherent jurisdiction to prevent injustice and abuse of process, the court dismissed the appeal for want of prosecution with costs to the respondent.
Court Disposition
appeal dismissed for want of prosecution with costs to the respondent
Orders
- The appeal is dismissed for want of prosecution.
- Costs of the appeal are awarded to the respondent/applicant.
Full Case Text
Judgment text and source record
20 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 20 OF 2006
LOIS TOWON……………………………………..…APPELLANT
VERSUS
ABDI MOHAMMED………………………………RESPONDENT
RULING
By the notice of motion dated 14/12/2010, the respondent/applicant seeks the dismissal of this appeal for want of prosecution and costs of the appeal. The application is premised on grounds found on the face of the application and the affidavit of the respondent, Abdi Mohamed who deponed that the appeal was filed in 2006 and since then the record of appeal has never been filed; that on 17/3/2010, the appellant was ordered by the Deputy Registrar to file the record of appeal but so far, nothing has been done. The applicant is of the view that the appellant/respondent has lost interest in the appeal.
The respondent filed a replying affidavit dated 14/6/201, in which she deponed that she had without success, tried to procure the lower court proceedings from the trial court in Maralal; that upon appointing her advocates, she discovered the file had been brought to this Hon. Court and therefore requested for time to prepare the record of appeal and ventilate her appeal; that the typed proceedings have been received and she has handed them over to the counsel for preparation of the record of appeal.
When the application came up for hearing on 5/5/2014, Mr. Kahiga held brief for Mr. Wambeyi, counsel for the appellant and asked for adjournment to enable him file an application to cease acting for the respondent. The court declined to grant an adjournment because there was no reason why Mr. Wambeyi had not filed the application to cease acting before the hearing date. The hearing date had been taken way back in 11/2/2014 and no doubt Mr. Wambeyi was aware of the hearing date.
This appeal was filed way back in 2006, having arisen from a suit filed in 2005. The appellant filed a reply to this application on 14/6/2011 in which she deponed that she had never received the typed proceedings from the lower court and needed time to compile and file the record of appeal. To date, three years later, no record of appeal has been prepared. Nothing has been done towards preparation of the record or towards prosecution of this appeal. Even after the appellant knew that this application was pending it seems she had not taken interest to instruct her client or find out what has happened to her case since she swore the affidavit in 2011. It is evident the appellant has lost interest in the appeal and there is no good reason why the appeal should continue pending in the court.
I have noted that the application was brought under Section 3A of the Civil Procedure Act and Order L Rule 1 instead of Order 42 Rule 35(1)of theCivil Procedure Rules.
However, considering the laxity on part of the appellant and the injustice being visited on the respondent due to the delay in finalizing this matter, this court exercises its inherent jurisdiction in order to do justice to the parties and dismisses this appeal with costs to the respondent/applicant. It is so ordered.
DATED and DELIVERED this 30th day of May, 2014.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the respondent/applicant
N/A for the appellant/respondent
Kennedy – Court Clerk