[2011] KEHC 233 (KLR)
The court found that although the appellants did not provide stamped evidence of their correspondence with the court registry, the exhibited letters demonstrated some effort to procure the lower court record. The failure to progress the appeal was attributed to the unavailability of the lower court file, which was...
Source-derived case information.
- Citation
- [2011] KEHC 233 (KLR)
- Parties
- Appellant: Moses Medza Kubai; Appellant: Stephen Kago Nduati; Respondent: John Marekia (deceased), represented by Gladys Marekia (wife and legal representative)
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 86 of 2008
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- adjourned with conditions
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Record Preparation, Court Registry Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Medza Kubai
Appellant
Stephen Kago Nduati
Appellant
John Marekia (deceased), represented by Gladys Marekia (wife and legal representative)
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellants.
- 2 Whether the appellants made sufficient effort to procure the lower court record for the appeal to proceed.
Ratio Decidendi
The court found that although the appellants did not provide stamped evidence of their correspondence with the court registry, the exhibited letters demonstrated some effort to procure the lower court record. The failure to progress the appeal was attributed to the unavailability of the lower court file, which was beyond the appellants' control. The court exercised discretion to grant the appellants a further three months to obtain the proceedings and prepare the record of appeal, warning that failure to do so would result in automatic dismissal of the appeal.
Court Disposition
adjourned with conditions
Orders
- The appellants are granted three months to procure the proceedings of the lower court, prepare the record of appeal, and have the appeal admitted for hearing.
- In default, the appeal will be struck out automatically.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURTOF KENYA
AT NAKURU
HCC APPEAL NO 86 OF 2008
MOSESMEDZA KUBAI...............................................................................................1ST. APPELLANT
STEPHENKAGO NDUATI.............................................................................................2ND APPELLANT
VERSUS
JOHN MAREKIA ( DECEASED
Represented by GLADYS MAREKIA (wife and legalRepresentative......................RESPONDENT
R U L I N G
This appeal was filed on 5/7/2008. So far no steps have been taken towards its prosecution. On 17/5/2011 the Court issued a Notice to Show Cause pursuant to Order 42 Rule 35(2) of the Civil Procedure Rules for the appellant to show cause why the appeal cannot be dismissed. Ms Penina Oloo, Counsel for the appellant filed an affidavit contending that attempts to have the appeal fixed for hearing on January 2009 failed, as the lower court file had not been called for. She wrote to the Deputy Registrar to request for the file from Naivasha (‘PO1’). She claims to have written to the court and the court replied to none of there letters but the said letters were not exhibited as per of ‘PO1’. Counsel also exhibited several letters from her office addressed to the Deputy Registrar dated 3/6/09, 3/9/09,5/3/09, 5/3/2010 and 5/8/2010 all requesting for the lower court file but there was no response. To date, no record of appeal has been prepared or filed.
I have perused the letters exhibited by counsel. It cannot be confirmed whether any of them were received by the court because none of the letters bears the court stamp. When one writes to the court or files a document it is immediately receipted by the registry. But for whatever the letters may be worth, I will give the appellant the benefit of doubt so thatif the letters are truly written to the court, counsel did make an attempt to have the appeal prepared for hearing but for lack of the lower court record from Naivasha court. That is beyond counsel’s control. I will allowthe appellant 3 monthswithin which to procure the proceedings of the lower court , have the record ready and have the appeal admitted in readiness for hearing. In default the appeal will be struck out automatically .
DATED AND DELIVERED THIS 17TH DAY OF JUNE 2011
RPV WENDOH
JUDGE
PRESENT
Mr Oloo forapplicant
CC: Kennedy Ogumo