[2009] KEHC 1371 (KLR)
The court found that although there had been delay in prosecuting the appeal, the subject matter being land required caution before dismissing the appeal for want of prosecution. The absence of directions and a record of appeal was noted, but the court held that the appellant should be given a final opportunity to...
Source-derived case information.
- Citation
- [2009] KEHC 1371 (KLR)
- Parties
- Appellant: Muchiri Muhunyo; Respondent: Mwangi Muhunyo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 263 of 2001
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Appeal not dismissed; appellant granted 30 days to prepare record and seek directions, failing which appeal stands dismissed with costs to respondent.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Appeals Process, Directions in Appeals, Record of Appeal, Land Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Muchiri Muhunyo
Appellant
Mwangi Muhunyo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction for over one year.
- 2 Whether the appellant should be allowed further opportunity to prosecute the appeal given the subject matter involves land.
- 3 Whether the absence of directions and a record of appeal justifies dismissal at this stage.
Ratio Decidendi
The court found that although there had been delay in prosecuting the appeal, the subject matter being land required caution before dismissing the appeal for want of prosecution. The absence of directions and a record of appeal was noted, but the court held that the appellant should be given a final opportunity to prepare the record and seek directions within 30 days, failing which the appeal would stand dismissed. The responsibility for progressing the appeal rests with counsel, and parties should not be unduly penalized for procedural delays where substantive justice can still be served.
Court Disposition
Appeal not dismissed; appellant granted 30 days to prepare record and seek directions, failing which appeal stands dismissed with costs to respondent.
Orders
- The appellant shall prepare a record of appeal and seek directions within 30 days of the ruling date.
- In default, the appeal shall stand dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
MUCHIRI MUHUNYO ……………………..…….…..….. APPELLANT
VS.
MWANGI MUHUNYO .…………………………….…. RESPONDENT
RULING
The respondent moved the court by way of Chamber Summons for orders that the appeal filed on 28th May, 2001 by the appellant be dismissed for want of prosecution. The grounds upon which the said order is sought are that, since the filing of the appeal, a period of more than one year has lapsed and no steps have been taken to prosecute the same. Secondly, the respondent/applicant has not been able to execute the lower court order due to the said pending appeal and thirdly, there have been several applications under certificate of urgency all of which have been dismissed.
I have gone through the record and there are grounds of opposition which were filed by the respondent/appellant to the effect that there has been some attempt to negotiate an out of court settlement which has not been exhausted. The other reason is that this matter involves land and in the interest of justice, the appellant/respondent should be allowed to prosecute his appeal.
One question that arises in the record before me is whether or not this appeal is indeed ready for hearing. I note that no directions have been taken and actually there is no record of appeal that is even ready to move the court to make any orders as to the hearing thereof.
The parties herein appeared before Mutungi J who reserved the ruling on 9th October, 2006. Regrettably the learned judge may have overlooked this issue because as at the time of his retirement about 3 years thereafter, this ruling had not been delivered. I agree that the subject matter herein is land and that some caution must be exercised before a drastic order such as dismissal is given to any applicant. I also bear in mind that the taking of directions or any other steps leading to the hearing of the appeal are the sole responsibility of counsel on record and parties rarely know of any such steps before hearing the appeal. Going by those observations, I am persuaded to maintain this appeal on record such that the parties have an opportunity to canvas the issues at the hearing.
I am therefore going to allow the appeal to be prosecuted on the following grounds:
(i) The appellant shall prepare a record of appeal and seek directions within 30 days of today.
(ii)In default the appeal shall stand dismissed with costs to the respondent.
Orders accordingly.
Dated, signed and delivered at Nairobi this 22nd day of October, 2009.
A. MBOGHOLI MSAGHA
JUDGE