[2014] KEHC 2150 (KLR)
The court found that the appellants had failed to take any steps to prosecute the appeal for over seven years since filing the Memorandum of Appeal. The appellants did not oppose the application or attend the hearing despite being served. The court confirmed from the file that no action had been taken to set down...
Source-derived case information.
- Citation
- [2014] KEHC 2150 (KLR)
- Parties
- Appellant: Lucy Wachuka Ma Thenge; Appellant: Andrew Kariuki; Respondent: Mary Nyakio Peter
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 843 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeals Process
- 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
Lucy Wachuka Ma Thenge
Appellant
Andrew Kariuki
Appellant
Mary Nyakio Peter
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 inordinate delay by the appellants.
- 2 Whether the respondent is entitled to costs for the application and the appeal.
Ratio Decidendi
The court found that the appellants had failed to take any steps to prosecute the appeal for over seven years since filing the Memorandum of Appeal. The appellants did not oppose the application or attend the hearing despite being served. The court confirmed from the file that no action had been taken to set down the appeal for hearing. The prolonged delay was prejudicial to the respondent, who had a judgment in her favor. The court held that the appellants had no interest in prosecuting the appeal and that it was in the interest of justice to dismiss the appeal for want of prosecution. Costs were awarded to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- The applicant is awarded costs of the application and the appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 843 OF 2006
LUCY WACHUKA MA THENGE …….………………………….…...…… ……1ST APPELLANT
ANDREW KARIUKI ….…………….…………...…………………………….....2ND APPELLANT
VERSUS
MARY NYAKIO PETER……………….…………………………………………….RESPONDENT
R U L I N G
1. The application before this Court is a Notice of motion dated 4th December 2013 brought Under Order 42 rule 35(1)(2), Order 51 rule 1 Order 43 rule 3 of the Civil Procedure Rules section 1A, 1B and 3A of the civil Procedure Act.
The applicant seeks the following orders;
That the appeal herein be dismissed for want of prosecution
That costs for this application and the entire appeal be bourne by the applicants.
2. The application is based on the following grounds;
That the appellants herein have refused failed and or neglected to set down the appeal for hearing or takings steps towards concluding the same.
That the appeal was filed on 4th December, 2006 and it is now over seven years and has not moved any step.
That the continued delay in finalizing or taking steps to conclude this appeal is hurting the respondent who has a judgment which has not been keen to prosecute this appeal.
That the respondent is manifestly clear and evident that the appellants are not keen to prosecute this appeal.
That the respondent should not be held at ransom by the appellants delay in prosecuting their appeal.
That litigation must come to an end.
3. The application is supported by the sworn affidavit of Mary Nyakio Peter dated 4th December, 2013. She deponed that the Memorandum of Appeal was filed on 4th December, 2006 and served on 6th December, 2006; that the appellants have never bothered to pay for certified copies of proceedings to enable them prepare a record of appeal; that it is over 6 years since the appeal was filed and the appellants are not keen on prosecuting their case against her and that it was un the interest of justice that the appeal be dismissed to alleviate the respondent’s appeal.
4. Despite the appellants being served as evidenced by the affidavit of service dated 24th April, 2014 the appellants did not file any affidavits opposing the same or attend Court on 21st May 2014 when the application came for hearing. I have confirmed from the Court file that since the appellant filed the Memorandum of appeal on the 4th December 2006 the appellant has taken no steps to set down the appeal for hearing. It is now more than 7 years since the appeal was filed. The appellant obviously has no interest in prosecuting the appeal, the respondent as a party has waited too long. I therefore, find that the application has merit and dismiss the appeal for want of prosecution. I award the Applicant costs.
Orders accordingly.
Dated, signed and delivered this 28th Day of May, 2014
R.E. OUGO
JUDGE
In the Presence of:-
……………………………………………………..………….……..………For the Plaintiff/Applicant
……………………………………………………………………..…..For the Defendant/Respondent
…………………………………………………………………….………….……….…. ….Court Clerk