[2016] KEHC 8208 (KLR)
The court found that although there was delay in prosecuting the appeal, both parties contributed to the inactivity after the appeal was certified ready for hearing. The respondent, having obtained stay of execution, bore primary responsibility for progressing the appeal but failed to do so. However, the court...
Source-derived case information.
- Citation
- [2016] KEHC 8208 (KLR)
- Parties
- Applicant: Nation Media Group Ltd; Respondent: Kenneth Simiyu Kangukha
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 586 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Strike Out or Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed with conditions
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure, Directions Under Order 42
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nation Media Group Ltd
Applicant
Kenneth Simiyu Kangukha
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Strike Out or Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be struck out or dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the delay in prosecuting the appeal was justified by the circumstances presented by the parties.
Ratio Decidendi
The court found that although there was delay in prosecuting the appeal, both parties contributed to the inactivity after the appeal was certified ready for hearing. The respondent, having obtained stay of execution, bore primary responsibility for progressing the appeal but failed to do so. However, the court exercised its discretion in favour of hearing the appeal on its merits, rather than striking it out for want of prosecution. The application to dismiss the appeal was therefore denied, but the respondent was ordered to fix the appeal for hearing within 90 days, failing which the appeal would stand dismissed. Costs of the application were awarded to the applicant.
Court Disposition
application dismissed with conditions
Orders
- The application to strike out or dismiss the appeal is dismissed.
- The respondent is to fix the appeal for hearing within 90 days from the date of the ruling.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI LAW COURTS
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 586 OF 2010
NATION MEDIA GROUP LTD......................................................APPLICANT
VERSUS
KENNETH SIMIYU KANGUKHA .............................................RESPONDENT
RULING
1. The application dated 17th August, 2016 principally seeks order that the Appellant’s appeal be struck out or dismissed for the reason that the Appellant has not taken out essential steps to prosecute the appeal as required.
2. It is stated in the affidavit in support that the judgment of the Lower Court was delivered on 13th September, 2010. A ruling on an application to set aside the said judgment was delivered on 25th November, 2010. On 21st December the Appellant filed the appeal herein. The Applicant’s complaint is that the Respondent delayed for six years before directions were taken pursuant to Order 42 rule 12 and Order 42 rule 13(1) Civil Procedure Act. That the applicant made an application for the dismissal of the appeal for want of prosecution but withdrew the same to pave way for the hearing of the appeal. That the Respondent nonetheless went to sleep and appears not interested in prosecuting of this appeal
3. The application is opposed. According to the affidavit filed by the Respondent the delay in setting down this appeal for directions was due to lack of typed Lower Court proceedings, which prompted this court to return the file to the Lower Court. That the filing by the Applicant of the application dated 16th April, 2012 stood in the way of the fixing the appeal for directions.
4. I have considered the application, the reply to the same and the submissions of the counsels for the respective parties.
5. The court record reflects that the Lower Court record complete with typed proceedings was availed to this court in the year 2013. The record of appeal and the supplementary record of appeal were filed the same year. The application dated 15th April, 2013 which sought an order for the dismissal of the appeal for want of prosecution was withdrawn in the year 2013. On 14th November, 2014 the appeal was certified ready for hearing. The parties were directed to take a hearing date in the registry on priority basis. It seems thereafter the Respondent did not take any steps to fix the appeal for hearing. The Applicant did not take any step either until the filing of this application under consideration.
6. The Respondent cannot escape the blame for the delay. It’s the Applicant who came to this court and obtained stay of execution orders way back in the year 2011. Be as it may, this Court is inclined to give the appeal a chance to be heard on merits. Consequently the application is dismissed. The Respondent’s to fix the appeal for hearing within the next 90 days from the date hereof. In default the appeal to stand dismissed. The costs of this application to go to the Applicant in any event.
Dated, signed and delivered at Nairobi this 10th day of Nov.,2016
B. THURANIRA JADEN
JUDGE