[2013] KEHC 5374 (KLR)
The court found that the primary reason for the delay in prosecuting the appeal was the unavailability of exhibits that were misplaced at the Nyahururu Law Courts. The appellant had now located the exhibits and was in the process of preparing them for the hearing. The court exercised its discretion to allow the...
Source-derived case information.
- Citation
- [2013] KEHC 5374 (KLR)
- Parties
- Appellant: Maina Nderitu; Respondent: James Mwaura Mbugua
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 80 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Appeal not dismissed; appellant granted 90 days to fix the appeal for hearing, failing which the appeal stands dismissed.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Missing Exhibits, Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maina Nderitu
Appellant
James Mwaura Mbugua
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in fixing the appeal for hearing.
- 2 Whether the appellant has provided sufficient explanation for the delay, particularly regarding the missing exhibits.
Ratio Decidendi
The court found that the primary reason for the delay in prosecuting the appeal was the unavailability of exhibits that were misplaced at the Nyahururu Law Courts. The appellant had now located the exhibits and was in the process of preparing them for the hearing. The court exercised its discretion to allow the appeal to proceed, but imposed a strict timeline: the appeal must be fixed for hearing within 90 days, failing which it would stand dismissed. The court considered that the delay was sufficiently explained and attributable to circumstances beyond the appellant's immediate control, but emphasized the need for expeditious prosecution of appeals.
Court Disposition
Appeal not dismissed; appellant granted 90 days to fix the appeal for hearing, failing which the appeal stands dismissed.
Orders
- The appeal shall be fixed for hearing within the next 90 days from the date of this ruling.
- In default of compliance, the appeal stands dismissed for want of prosecution.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nakuru
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MAINA NDERITU…….…………………………….APPELLANT
VERSUS
JAMES MWAURA MBUGUA……………….…..RESPONDENT
RULING
This appeal was filed on 17/5/2007. On 25/7/2011, the court issued an order reinstating the appeal and allowed the appellant 90 days within which to prosecute the appeal.
On 28/8/2012, the court issued a notice on the appellant to show cause why the appeal cannot be dismissed for want of prosecution. The appellant filed a replying affidavit in which he tries to explain why the appeal should not be dismissed. It is the appellant’s case that a bunch of receipts were produced in the lower court, as exhibits, a carton full. They were misplaced at Nyahururu Law Courts and that though the record of appeal has been prepared and served, the exhibits had not been released by Nyahururu Law Courts; That following the notice to show cause, the exhibits have been found, and he is in the process of photocopying them so that the appeal can proceed to hearing. He requested for 21 days.
Mr. Kerago, counsel for the respondent supported the notice to show cause as there is no evidence that the appellant has been attempting to get the exhibits.
In my earlier ruling dated 25/11/2011, the issue of missing exhibits in the lower court featured. It seems the exhibits have been an issue in the delay in filing of the record of appeal and subsequently the fixing of the appeal for hearing. Now that the exhibits have been found, I direct that the appeal be fixed for hearing within the next 90 days in default the appeal stands dismissed. Costs of notice to show cause will abide the appeal.
DATED and DELIVERED this 23rd day of January, 2013.
R.P.V. WENDOH
JUDGE
PRESENT:
N/A for the appellant
N/A for the respondent
Kennedy – Court Clerk