[2011] KEHC 547 (KLR)
The court found that the appellant had failed to file written submissions despite being given ample opportunity and that the record showed a consistent lack of diligence in prosecuting the appeal. The court considered two options: dismissing the appeal for want of prosecution or proceeding to determine the appeal on...
Source-derived case information.
- Citation
- [2011] KEHC 547 (KLR)
- Parties
- Appellant: Mohamed Bin Asman; Respondent: Saina Nasambu Nyongesa
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 82 of 1997
- Procedural Posture
- Civil Appeal / Judgment on Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Process, Written Submissions, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamed Bin Asman
Appellant
Saina Nasambu Nyongesa
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to the appellant's failure to file written submissions.
- 2 Whether the court should proceed to determine the appeal on the record without the appellant's submissions.
Ratio Decidendi
The court found that the appellant had failed to file written submissions despite being given ample opportunity and that the record showed a consistent lack of diligence in prosecuting the appeal. The court considered two options: dismissing the appeal for want of prosecution or proceeding to determine the appeal on the record without the appellant's submissions. Given the appellant's conduct and the prolonged delay since the appeal was filed in 1997, the court held that dismissal for want of prosecution was the more appropriate remedy to prevent further delay and obstruction of justice. The appeal was therefore dismissed with costs to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution with costs to the respondent.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO.82 OF 1997
MOHAMED BIN ASMAN…………………………..................…..…APPELLANT
=VERSUS=
SAINA NASAMBU NYONGESA…………………...................……..RESPONDENT
26. 9.2011
In Chambers
Before:Onyancha, Judge
Mutai – in attendance
Court:
On 25. 5.2011 the Counsel for the appellant Mr. Wanyama and Mr. Kiarie for respondent appeared before me and Mr. Wanyama confirmed to the court that they each had filed their written submissions in the process of hearing the pending appeal. I have however properly checked the file record of this appeal and can confirm that while the Respondent’s submissions are in the file, those of the appellant are not. It is difficult for the court, accordingly, to write the intended judgement.
I have examined the record and find that this appeal was filed in 1997. Comments from time to time in the record suggest that appellant was not at any given time anxious to prosecute the appeal. Indeed the Respondent made several complaints against the obstractive conduct of the appellant. The court also, especially recently, tended to push the appellant through his advocate to bring the litigation to some end. The court also noticed that some court staff tended to be obstructive to the process of attempting to bring the appeal to a hearing.
It is in those surroundings that the court, now finds that the appellant’s Counsel may not have filed his written submissions. If he did, a member of staff must have assisted in removing it from the record to frustrate the finalization of the appeal and delay further the ends of justice.
I have carefully considered this agonizing situation. The finalization of this appeal should not be delayed any further. There appear two possible ways of moving forward. One, is to dismiss the appeal for want of prosecution because the appellant, having been given an opportunity to argue his appeal, failed to do so.
Second, the court can proceed to base its consideration of the appeal on the record as it is without appellant’s submissions. Either way may not be the ideal method, but it is time for this appeal to be brought to an end.
I have considered the alternatives. I am of the view that for this appeal, dismissal would be more appropriate taking into account the conduct of the appellant or his Counsel, all along.
Order:The appeal is dismissed for want of prosecution with costs to the Respondent. Orders accordingly.
Dated and delivered at Bungoma this 10th day of Oct 2011.
D.A. ONYANCHA
JUDGE.