[2012] KEHC 2038 (KLR)
The court found that the appellant had made sufficient efforts to prosecute the appeal, as evidenced by multiple correspondences seeking to trace the lower court file and fix a hearing date. The delay in hearing the appeal was not entirely the appellant's fault, but was also due to the court's failure to avail the...
Source-derived case information.
- Citation
- [2012] KEHC 2038 (KLR)
- Parties
- Appellant: Mwangi Kimani; Respondent: Felix Mureithi Kariuki
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 90 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Notice to show cause withdrawn; appeal not dismissed.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Missing Court File
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mwangi Kimani
Appellant
Felix Mureithi Kariuki
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 under Order 42 Rule 35(2) of the Civil Procedure Rules.
- 2 Whether the appellant is to blame for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had made sufficient efforts to prosecute the appeal, as evidenced by multiple correspondences seeking to trace the lower court file and fix a hearing date. The delay in hearing the appeal was not entirely the appellant's fault, but was also due to the court's failure to avail the lower court file. Consequently, the appellant demonstrated sufficient cause why the appeal should not be dismissed for want of prosecution. The notice to show cause was therefore withdrawn, and directions were given to trace the lower court file and mention the matter within a month for further directions.
Court Disposition
Notice to show cause withdrawn; appeal not dismissed.
Orders
- The notice to show cause is withdrawn.
- The Deputy Registrar is directed to ensure the lower court file is traced.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAKURU
Civil Appeal 90 of 2007
MWANGI KIMANI……………………………..……APPELLANT
VERSUS
FELIX MUREITHI KARIUKI……………………RESPONDENT
RULING
This appeal was filed way back on 18/12/08 and it has not been prosecuted since. On 28/8/2012, the court took out a notice to show cause to issue on the appellant to show cause why the appeal should not be dismissed under Order 42 Rule 35(2) of the Civil Procedure Rules. The appellant filed an affidavit dated 25/9/2012 requesting the court to refrain from dismissing the appeal for reasons that despite appellant’s efforts to have the appeal heard, the lower court file CMC 731/2003 has been missing. The appellant exhibited correspondences between the firm of Rodi Orego & Co. Advocates with the Court in which the Advocates were asking for the file CMC 731/03.
I have perused the file and the last time it was before the Deputy Registrar is on 31/7/2009 when directions were taken to the effect that a date for hearing be taken at the registry. The appellant wrote a letter dated 15/11/2010 requesting the respondent’s counsel to attend court for fixing a hearing date but it was not fixed because the lower court file was missing. Another letter dated 24/11/2010 by the appellant’s counsel addressed to the Executive Officer, Nakuru Court, requested that CMC 731/03 be sent to the High Court so that a hearing date could be taken in this appeal. On 30/11/2010, the appellant’s counsel also wanted the respondent’s counsel to attend court with a view of fixing a hearing date. On 2/6/2011, the appellant’s counsel again wrote to the Chief Magistrate Nakuru requesting that the lower court file be availed. The last letter dated 12/2/2012 does not seem to have been received by the court.
In view of the appellant’s efforts disclosed in the correspondences exhibited, I am satisfied that it is not entirely the fault of the appellant that this appeal has not been heard. The court is partially to blame for not availing the lower court file. For that reason, the appellant has sufficiently demonstrated why the appeal should not be dismissed and the Notice to show cause is hereby withdrawn. I direct that the Deputy Registrar do ensure that the lower court file is traced and this matter be mentioned in a month’s time after which the parties can take a hearing date for the appeal.
DATED and DELIVERED this 5th day of October, 2012.
R.P.V. WENDOH
JUDGE
PRESENT:
Ms Sieling holding brief forMr. Orege for the appellant
N/A for the respondent
Kennedy – Court Clerk