[2016] KEHC 3096 (KLR)
The court found that the appellants had not taken any steps to prosecute their appeal since it was admitted for hearing on 24th September 2013, and that more than three years and eight months had elapsed without any action. The court was satisfied that the appellants were properly served and had adequate notice of...
Source-derived case information.
- Citation
- [2016] KEHC 3096 (KLR)
- Parties
- Appellant: Lydia Wanjira; Appellant: Racheal Irima Nyaga; Appellant: Cicily Wangari; Appellant: Eunice Wangari; Respondent: Peter Muchira Njau
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 130 of 2012
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Procedure, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lydia Wanjira
Appellant
Racheal Irima Nyaga
Appellant
Cicily Wangari
Appellant
Eunice Wangari
Appellant
Peter Muchira Njau
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellants.
- 2 Whether the appellants were properly served and given adequate notice of the hearing.
Ratio Decidendi
The court found that the appellants had not taken any steps to prosecute their appeal since it was admitted for hearing on 24th September 2013, and that more than three years and eight months had elapsed without any action. The court was satisfied that the appellants were properly served and had adequate notice of the hearing. In the absence of any steps taken by the appellants to advance the appeal, and in the absence of any response to the application, the court concluded that the appellants had lost interest in the appeal. Accordingly, the court exercised its discretion to dismiss the appeal for want of prosecution.
Court Disposition
Appeal dismissed for want of prosecution.
Orders
- The appeal is hereby dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 130 OF 2012
LYDIA WANJIRA
RACHEAL IRIMA NYAGA
CICILY WANGARI
EUNICE WANGARI ................................................APPELLANTS
VERSUS
PETER MUCHIRA NJAU....................RESPONDENT/APPLICANT
R U L I N G
1. This is an application for dismissal of this appeal for want of prosecution. The application is brought by way of notice of motion and is supported by the grounds on the face of that motion. Furthermore, it is anchored in the supporting affidavit of the respondent/applicant. In his grounds in support of the application, the applicant has stated that the appeal has been pending without being prosecuted and that the appellants have lost interest in their appeal. He also stated that ever since the filing of the appeal, the appellants have not taken any step to finalize it.
2. In his supporting affidavit the applicant has deponed that the appeal was filed on 21st December 2012 by the firm of M/S Mungai and Kivuti & Co. Advocates, and the appellants have not taken any steps to prosecute it. He has also deponed that he has visited the High Court Registry to ascertain whether the appellants have taken any steps to prosecute their appeal and found that the appellants had not taken any steps to prosecute their appeal. Furthermore he, has deponed that it is now over three years, since the appeal was filed and the appellants have not taken any steps to prosecute their appeal. He has further deponed that the filing of this appeal was intended to deny him the fruits of his judgment. Finally, he has deponed that it is for the foregoing reasons that he now seeks to have the appeal dismissed for want of prosecution.
3. The application proceeded in the absence of the appellants, after I was satisfied that they were properly served and had adequate notice of the hearing.
4. I find this appeal was admitted into hearing on 24th September 2013 and on 30th September 2013 the advocates on record were notified by the Deputy Registrar that their appeal had been admitted into hearing. Since that time the appellants have not taken any steps to prosecute their appeal. First, they have not prepared the record of appeal. It therefore follows that the appeal has been lying unprosecuted for now over three years and eight months. I therefore find that the appellants have lost interest in their appeal.
5. In the circumstance, I hereby grant the application. The appeal is hereby dismissed for want of prosecution with no order as to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this 13th day of SEPTEMBER 2016
In the presence of the respondent/applicant and in the absence of all the respondents.
Court clerk Njue.
J.M. BWONWONGA
JUDGE
13. 09. 16