[2013] KEHC 6783 (KLR)
The court found that although there had been delay in prosecuting the appeal, the appellant had provided a reasonable explanation for the delay, namely, lack of notice from her former counsel regarding withdrawal and lack of service of hearing dates. The appellant's presence in court and her affidavit demonstrated...
Source-derived case information.
- Citation
- [2013] KEHC 6783 (KLR)
- Parties
- Appellant: Mary Wamabui Kibunya; Respondent: Henry Mugethe Karanja; Respondent: James Wamunyu Karanja; Respondent: John Mburu Karanja
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 178 of 2007
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal for want of prosecution declined. Appeal to proceed.
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Right to Be Heard, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mary Wamabui Kibunya
Appellant
Henry Mugethe Karanja
Respondent
James Wamunyu Karanja
Respondent
John Mburu Karanja
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 delay by the appellant.
- 2 Whether the appellant was denied an opportunity to prosecute the appeal due to actions of her former counsel.
- 3 Whether the existence of a related succession cause in Eldoret High Court affects the present appeal.
Ratio Decidendi
The court found that although there had been delay in prosecuting the appeal, the appellant had provided a reasonable explanation for the delay, namely, lack of notice from her former counsel regarding withdrawal and lack of service of hearing dates. The appellant's presence in court and her affidavit demonstrated her desire to prosecute the appeal. Given the emotive nature of land matters and in the interest of justice, the court exercised its discretion to decline dismissal for want of prosecution, instead granting the appellant an opportunity to proceed with the appeal. The court emphasized that parties should be given a hearing where possible, especially in old land disputes, and...
Court Disposition
Application for dismissal for want of prosecution declined. Appeal to proceed.
Orders
- The application to dismiss the appeal for want of prosecution is declined.
- Parties to be given a hearing date on priority basis at the registry.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
CIVIL APPEAL NO. 178 OF 2007
MARY WAMABUI KIBUNYA .............................APPELLANT/RESPONDENT
VERSUS
HENRY MUGETHE KARANJA..........................1ST RESPONDENT/APPLICANT
JAMES WAMUNYU KARANJA.........................2ND RESPONDENT/APPLICANT
JOHN MBURU KARANJA…………………….………3RD RESPONDENT/APPLICANT
RULING
Before me is a chamber summons dated the 25/4/13 filed by the respondent/applicant. It is brought under order 42 rule 35(1) of the Civil Procedure Rules 2010. The applicant/respondent is seeking the following orders;
That the applicants appeal be dismissed for want of prosecution.
That costs of the application and the entire appeal be borne by the applicant/respondent.
The application is grounded on six grounds stated on the face of the application. It is also supported by the affidavit of Job Mwangi Thiga counsel for the respondent/applicant. He avers that the appeal in this matter was filed on the 15/5/07. On the 15/12/08 the appeal was slated for hearing but was stood over generally.
Thereafter the appeal has been fixed for hearing on the 7/7/2009, 24/11/09 and 21/9/10 but taken out for various reasons. That on the 6/12/10 the appellants counsel was allowed to withdraw but since then the appellant has not taken any steps to prosecute the appeal. That the appellant has slept on her nights and lost interest in the matter. That equity does not favour the indolent and litigation should not be allowed to continue ad infinitum
The appellant/respondent appeared in person. She filed a replying affidavit dated the 29/10/13. In it she explains why the appeal should not be dismissed. She avers that she was not told by her former counsel that she was withdrawing as she was not served with the application, that all the hearing dates mentioned were served on her counsel all were done behind her back. That there is a suit at Eldoret High Court a succession cause and its findings shall have a bearing over this suit.
In reply Mr. Thiga stated that the Eldoret case has no bearing over this case and that there is no stay in the matter nor in this case.
I have considered the parties arguments. there is indeed an appeal pending. It is apparent that there has been some delay. The appellant from what is deponed in her replying affidavit and her presence in court shows she is desirous of having the appeal heard. She blames her former counsel from withdrawing from the matter without informing her. I note that this is a land matter, land matters are emotive and in the interest of justice I will give the appellant a chance to prosecute her appeal. I therefore decline to grant the orders ought to dismiss the appeal for want of prosecution. Parties to be given a dated on priority basis at the registry as this is a fairly old matter. Costs shall be in the cause.
Dated, signed and delivered this 8th Day of November 2013.
R. E OUGO
JUDGE
In the presence of:-
……………………………………………………….…Respondent/Applicant
…………………………………………………….……Appellant/Respondent
……………………………………………….………………………Court Clerk