[2014] KEHC 4289 (KLR)
The court found that although there was delay in prosecuting the appeal, the appellant was not solely to blame, as the Deputy Registrar failed to notify him that the appeal had been admitted and the appellant did not follow up due to ignorance. The appellant has now indicated readiness to proceed. In the interests...
Source-derived case information.
- Citation
- [2014] KEHC 4289 (KLR)
- Parties
- Appellant: Maluki Mwenga; Respondent: Kitheka Mbuthi
- Court
- High Court
- Court Station
- High Court at Garissa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 6 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Notice of Motion to Dismiss Appeal for Want of Prosecution
- Outcome
- Application to dismiss appeal for want of prosecution dismissed; directions issued for expeditious hearing.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Directions on Appeal, Service of Memorandum, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maluki Mwenga
Appellant
Kitheka Mbuthi
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice of Motion to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay by the appellant.
- 2 Whether the appellant is solely to blame for the delay in prosecuting the appeal.
- 3 What directions should be given to ensure expeditious disposal of the appeal.
Ratio Decidendi
The court found that although there was delay in prosecuting the appeal, the appellant was not solely to blame, as the Deputy Registrar failed to notify him that the appeal had been admitted and the appellant did not follow up due to ignorance. The appellant has now indicated readiness to proceed. In the interests of substantive justice and considering the circumstances, the court declined to dismiss the appeal for want of prosecution. Instead, the court issued directions for service of the memorandum of appeal and lower court proceedings, set timelines for responses and submissions, and scheduled a mention to fix a hearing date. Each party was ordered to bear their own costs for the...
Court Disposition
Application to dismiss appeal for want of prosecution dismissed; directions issued for expeditious hearing.
Orders
- Appellant to serve the respondent with the memorandum of appeal and lower court proceedings on or before 17th June 2014.
- Respondent to file any submissions on or before 27th June 2014.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT GARISSA
CIVIL APPEAL NO 6 OF 2013
MALUKI MWENGA………………………………APPELLANT/RESPONDENT
VERSUS
KITHEKA MBUTHI…………………………………RESPONDENT/APPLICANT
RULING
Kitheka Mbuthi who is the applicant in this Notice of Motion is the respondent in the appeal preferred by Maluki Mwenga the respondent. He has brought this application under Order 51 rule 1 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. The Notice of Motion is dated 10th January 2014 and seeks to have the appeal dismissed and or the court to give directions in respect of the same as well as costs to the respondent. The application is supported by grounds on the face of the application as well as in the supporting affidavit. The main reason for this application is the contention that the appellant has never taken steps to file the record of appeal and or serve the memorandum of appeal to the respondent and no directions have been sought; that it has been over one year since the appeal was filed yet the appellant has not taken any steps to have the same prosecuted.
The respondent in his replying affidavit deposes that he has been unable to file the record of appeal due to lack of resources to secure legal representation; that he filed a memorandum of appeal in time and that after he managed to get help to prepare his papers he is now ready to prosecute the appeal.
I have perused the court file. I note that the memorandum of appeal was filed on 10th April 2013 and the Deputy Registrar called for the lower court file through a letter dated 2nd May 2013. The file was received at the Registry in Garissa High Court on 10th June 2013. The file was thereafter placed before the Judge for action. The appeal was admitted to hearing on 28th June 2013. After the admission of the appeal by the Court the appellant did not take any action to move the court for mention of the appeal and directions.
Admittedly it seems that the Deputy Registrar failed to notify the appellant that the appeal had been admitted and in his ignorance he did not follow up the matter with the Registry.
I have considered that the appellant now seems ready to move the court to hear this matter. He is not fully to blame in the delay in prosecuting the matter as stated above. I will allow the second option sought by the applicant. Instead of dismissing this appeal for want of prosecution, I wish to have this matter proceeds to full trial and the issues determined substantively. In this regard, the appellant shall serve the respondent with the memorandum of appeal and the proceedings from the lower court on or before 17th June 2014. The respondent shall respond and file any submissions on or before 27th June 2014. This case shall be mentioned thereafter on a date convenient to both parties to be agreed upon on 10th June 2014 after delivery of this ruling with a view to taking a hearing date. It is so ordered. Considering that the appellant is not fully to blame for the delay, I order that each party bears the costs of this application.
Dated, signed and delivered this 10th day of June 2014.
S.N.MUTUKU
JUDGE