[2014] KEHC 1247 (KLR)
The court found that, although there had been a significant delay in prosecuting the appeal, the appellant had demonstrated through correspondence and attempts at the registry that they were actively seeking to fix the matter for hearing. The delay was attributed to the unavailability of the court file rather than...
Source-derived case information.
- Citation
- [2014] KEHC 1247 (KLR)
- Parties
- Appellant: M N K; Respondent: J W K
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 16 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out or Dismiss Appeal
- Outcome
- Application to strike out or dismiss appeal dismissed; conditional order granted.
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
M N K
Appellant
J W K
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out or Dismiss Appeal
Legal Issues
- 1 Whether the appeal should be struck out or dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the appellant has provided sufficient justification for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that, although there had been a significant delay in prosecuting the appeal, the appellant had demonstrated through correspondence and attempts at the registry that they were actively seeking to fix the matter for hearing. The delay was attributed to the unavailability of the court file rather than inaction or lack of interest by the appellant. Consequently, the court exercised its discretion not to dismiss the appeal at this stage but imposed a strict timeline for the appellant to take action, failing which the appeal would stand dismissed automatically with costs to the respondent.
Court Disposition
Application to strike out or dismiss appeal dismissed; conditional order granted.
Orders
- The appellant is to fix the matter for directions on hearing within 90 days.
- If no action is taken within 90 days, the appeal shall stand dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO.16 OF 2007
M N K……………………..…………………..APPELLANT
VERSUS
J W K……………………………………..RESPONDENT
RULING
The appellant filed a Memorandum of Appeal on the 22/5/07. The record of appeal was filed on the 19/7/07. In the application before this court the respondent seeks to have the memorandum of appeal struck out or dismissed. Reasons given are that since the memorandum of appeal was field it has been 7 years and that the appellant has not taken any step to present the appeal and therefore the appellant is not interested in the appeal.
The application was opposed. Mr. Thuo for the applicant states that they have attempted to take dates at the registry on several occasions but the court file has been missing. That the last attempt was on the 23/7/14 and that therefore it is not correct hat no action has been taken for 7 years and that they are willing to take a date.
It is evident from the letter attached by Mr. Thuo that they have been seeking dates in this matter from September 2013. I will give them the benefit of doubt in the matter and will not dismiss the appeal but order that the applicant fixes the matter for directions on the hearing in the next 90 days. In default of taking any action within the said period the appeal shall stand as dismissed with costs to the respondent. Costs shall be in the cause.
Orders accordingly.
Dated, signed and delivered this 28thday of October 2014
R. E OUGO
JUDGE
……………………..……………………………………………….APPELLANT
………………………………………….………………………..RESPONDENT
………………………………………..…………………………COURT CLERK