[2019] KEHC 11159 (KLR)
The court found that although there was a delay of over two years in prosecuting the appeal, the respondent had provided some explanation by exhibiting letters requesting certified copies of proceedings and judgment from the lower court, which were not responded to. However, the respondent did not demonstrate any...
Source-derived case information.
- Citation
- [2019] KEHC 11159 (KLR)
- Parties
- Applicant: Moblin Limited; Respondent: Grace Atieno Sakwa; Respondent: Cliff Okete Swaka
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 150 of 2015
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out Notice of Appeal and Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure, Release of Decretal Sum
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moblin Limited
Applicant
Grace Atieno Sakwa
Respondent
Cliff Okete Swaka
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out Notice of Appeal and Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the notice of appeal should be struck out.
- 3 Whether the decretal sum deposited should be released to the respondents.
Ratio Decidendi
The court found that although there was a delay of over two years in prosecuting the appeal, the respondent had provided some explanation by exhibiting letters requesting certified copies of proceedings and judgment from the lower court, which were not responded to. However, the respondent did not demonstrate any further steps taken to follow up on the proceedings. The court noted that directions under Section 79B of the Civil Procedure Act had not been given and the record of appeal had not been compiled or filed. Given that the appeal was on both liability and quantum, the court held it was not appropriate to release the decretal sum at this stage. The court exercised its discretion to...
Court Disposition
application dismissed
Orders
- The application dated 24th May, 2017 is dismissed with costs in cause.
- The record of appeal to be compiled and served and the appeal to be fixed for directions within 90 days from the date herein.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 150 OF 2015
MOBLIN LIMITED...............................................APPLICANT/RESPONDENT
VERSUS
GRACE ATIENO SAKWA..............................1ST RESPONDENT/APPLICANT
CLIFF OKETE SWAKA.................................2ND RESPONDENT/APPLICANT
RULING
1. The application dated 24th May, 2017 seeks orders that the court be pleased to “strike out the Notice of Appeal and dismiss the Appeal for want of prosecution.”
2. It is stated in the grounds and the affidavit in support that the Applicant has not taken any steps to prosecute the Appeal herein. That the delay herein has occasioned loss to the children of the deceased who was the sole breadwinner of the family. That the children of the deceased who died in a road traffic accident have been rendered destitute and cannot meet their basic needs or attend school. The court was urged to release the decretal sum of Ksh. 704,658/= deposited in a joint account.
3. The application is opposed. It is stated that the Appeal herein is against both liability and quantum. The delay in prosecuting the Appeal is blamed on failure by the lower court to supply the Respondent with the typed proceedings and judgment of the lower court. That no directions have given in accordance with Section 79B Civil Procedure Act.
4. The application was disposed of by way of written submissions. I have considered the said submissions.
5. The Memorandum of Appeal herein was filed on 10th April, 2015. By the time the application at hand was filed on 24th May, 2017 a period of over two years had lapsed.
6. The delay has been explained. The letters by the Respondent exhibited herein requesting for the certified copies of the typed proceedings, judgement and Decree have no response from the lower court and have not been controverted by any other evidence. However, there is no evidence of any steps taken by the Respondent to follow up on the said proceedings. The Record of Appeal is yet to be compiled and filed and directions under Section 79B Civil Procedure Act given.
7. Taking into account the undisputed averment by the Respondent that the Appeal herein is both on liability and quantum, it is not possible to release the decretal sum at this stage.
8. With the foregoing, this court is inclined to allow the Appeal to proceed on merits. Consequently, I dismiss the application with costs in cause. The Record of Appeal to be compiled and served and the Appeal to be fixed for directions within 90 days from the date herein. In default the Appeal to stand dismissed.
Dated, signed and delivered in Nairobi this 28th day of March, 2019
B. THURANIRA JADEN
JUDGE