[2011] KEHC 2548 (KLR)
The court found that the appellant had not taken sufficient steps to prosecute the appeal since its filing in 2007, with significant periods of inaction. However, noting that counsel for the appellant had now appeared and expressed willingness to proceed, the court exercised its discretion to grant the appellant a...
Source-derived case information.
- Citation
- [2011] KEHC 2548 (KLR)
- Parties
- Appellant: Maritim Bwogo; Respondent: Moses Barno
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 199 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Conditional extension granted; appeal to be dismissed if not prosecuted within 90 days.
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Record of Appeal, Delay in Prosecution
- 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
Maritim Bwogo
Appellant
Moses Barno
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 under Order 41 Rule 31(2) of the Civil Procedure Rules.
- 2 Whether the appellant has demonstrated sufficient cause for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not taken sufficient steps to prosecute the appeal since its filing in 2007, with significant periods of inaction. However, noting that counsel for the appellant had now appeared and expressed willingness to proceed, the court exercised its discretion to grant the appellant a final opportunity to procure the lower court file and prepare the record of appeal within 90 days. The court held that failure to comply within this period would result in automatic dismissal of the appeal. Costs were awarded to the respondent.
Court Disposition
Conditional extension granted; appeal to be dismissed if not prosecuted within 90 days.
Orders
- The appellant is granted 90 days to procure the lower court file and prepare the record of appeal for admission.
- In default of compliance within 90 days, the appeal shall stand dismissed.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 199 OF 2007
MARITIM BWOGO............................................................................................APPELLANT
VERSUS
MOSES BARNO..................................................................................................................RESPONDENT
RULING
On 2/10/2010, this court issued a notice on the appellant under Order 41 Rule 31(2) of the Civil Procedure Rules, to show cause why this appeal should not be dismissed for want of prosecution. Mr. Kahiga, counsel for the appellant appeared in court on 16/11/2010 and sought time to file an affidavit in reply. He filed the affidavit dated 10/12/2010. Lawrence Karanja, counsel for the appellant deponed that an appeal was preferred from decision of the Land Disputes Appeals Committee Rift Valley Province dated 9/10/07 and all efforts to get the Tribunal file transferred from Molo to Nakuru for preparation of record of appeal have been futile. He deponed that on 22/7/08 they wrote to the Deputy Registrar for an early hearing date which was declined because the lower court file had not been received (LMK II). Further request was made on 17/11/2010 after which they learnt of the notice to show cause. It is the appellant’s contention that they have made effort to have the appeal prosecuted but for the lack of the lower court file. It is the appellant’s view that the appeal raises issues of law which should be considered on appeal failing which the appellant will be prejudiced.
Mr. Ogolla, counsel for the respondent submitted that since Februarys 2009, no steps have been taken in the appeal. That despite the appellant being given time to file an affidavit, counsel had just been served with a reply an indication of the appellant’s lethargy. He urged that the appellant had not demonstrated why the appeal should not be dismissed.
Since this appeal was filed in 2007, the 1st step taken by the appellant’s letter of 22/7/08, seeking a date for their application for directions, even before the record of appeal was even prepared. From then nothing was done till 9/2/2009 when the appellant wrote to the Resident Magistrate’s Court, Molo, requesting for the lower court file. Thereafter, the appellant went to sleep again. The next letter was written on 17/11/2010 when this notice to show cause had already been taken. I believe the letter was written after the notice to show cause had been served on the appellant’s counsel. I find that the appellant has really not done much towards prosecution of this appeal. It is now 4 years since it was filed. Since counsel has appeared and now seems keen to have the appeal heard, the court will allow them 3 months (90 days) within which to have the file procured, record prepared for admission for appeal. In default, the appeal will stand dismissed. Costs to the respondent.
DATED and DELIVERED this 20th day of May 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
No appearance for the Appellant.
.................................................for the Respondent.
Kennedy – Court Clerk.