[2011] KEHC 2664 (KLR)
The court found that while the appellant made some efforts to obtain the lower court file and prepare the record of appeal, those efforts were insufficient to justify the prolonged delay. However, in the interests of justice and considering the minimal steps taken, the court exercised its discretion to grant the...
Source-derived case information.
- Citation
- [2011] KEHC 2664 (KLR)
- Parties
- Appellant: Nelson Okello Obillo; Respondent: Timsales Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 87 of 2007
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Appellant granted six months to reconstruct file and prepare record of appeal; appeal to stand dismissed if not complied with; costs to respondent.
- Legal Topics
- Dismissal for Want of Prosecution, Reconstruction of Court Record, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nelson Okello Obillo
Appellant
Timsales Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in preparing the record of appeal.
- 2 Whether the appellant made sufficient efforts to obtain the lower court file and proceedings.
- 3 Whether the appellant should be granted more time to reconstruct the file and prepare the record of appeal.
Ratio Decidendi
The court found that while the appellant made some efforts to obtain the lower court file and prepare the record of appeal, those efforts were insufficient to justify the prolonged delay. However, in the interests of justice and considering the minimal steps taken, the court exercised its discretion to grant the appellant a further six months to have the file reconstructed and the record of appeal prepared. Failure to comply within this period would result in automatic dismissal of the appeal. Costs were awarded to the respondent.
Court Disposition
Appellant granted six months to reconstruct file and prepare record of appeal; appeal to stand dismissed if not complied with; costs to respondent.
Orders
- Appellant is granted six months to have the lower court file reconstructed and prepare the record of appeal for admission and hearing.
- In default of compliance within six months, the appeal shall stand dismissed.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 87 OF 2007
NELSON OKELLO OBILLO...........................................APPELLANT
VERSUS
TIMSALES LIMITED....................................................RESPONDENT
RULING
Nelson Okello Obillo filed this appeal against Timsales Ltd on 30/5/2007. On 25/10/2010, the court moved under Order 41 Rule 3(2) of the Civil Procedure Rules and issued a notice on the appellant to show cause why the appeal cannot be dismissed for want of prosecution.
Alfred Nyagaka Advocate filed an affidavit in which he depones that their efforts to prosecute the appeal have been frustrated by the lack of the lower court file and proceedings. Counsel annexed a letter dated 3/7/2007 addressed to Chief Magistrate Nakuru asking for proceedings in the matter (FON 1). They paid for decree and proceedings FON II – IV and wrote to the Chief Magistrate on 8/5/2009 and 29/7/2009 (FON V) seeking to have the lower court file reconstructed. On 4/2/2010 they wanted to move the court for reconstruction when they were asked to indulge the registry as they searching for the file. Further letter was written on 24/6/2010 (VII).
In opposing the appellant’s request to be given more time to prepare the record of appeal, Mr. Mahida, advocate for the respondent filed an affidavit dated 26/11/2010 in which he denies having been served with a memorandum of appeal or the letters which have now been exhibit in court till the appellant was called upon to show cause. Counsel also noted that the application seeking reconstruction was never filed in the lower court.
Having considered the affidavits filed herein, I note that though the appellant made some effort in having the appeal ready for hearing, not enough was done. For the little effort made, this court will allow the appellant 6 months within which to have the file reconstructed if it is true that it cannot be found and prepare the record of appeal for admission and setting it down for hearing. In default the same shall stand dismissed. Costs to the respondent.
DATED and DELIVERED this 20th day of May, 2011.
R.P.V. WENDOH
JUDGE
PRESENT:
Mr. Onchangu holding brief for Mr. Ombui for the Appellant.
Ms Wanjiru holding brief for Mahida for the Respondent.
Kennedy – Court Clerk.