[2016] KEHC 1759 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for over seven years since filing the amended memorandum of appeal in April 2009. The prolonged inaction indicated a lack of interest in pursuing the appeal. The court was satisfied that the respondent had properly served the...
Source-derived case information.
- Citation
- [2016] KEHC 1759 (KLR)
- Parties
- Appellant: Njiru Mbiru; Respondent: Michael Ngari Muratho
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 117 of 2008
- Procedural Posture
- Civil Appeal / Application for Dismissal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution.
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njiru Mbiru
Appellant
Michael Ngari Muratho
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant.
- 2 Whether the respondent is entitled to costs upon dismissal of the appeal.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for over seven years since filing the amended memorandum of appeal in April 2009. The prolonged inaction indicated a lack of interest in pursuing the appeal. The court was satisfied that the respondent had properly served the appellant with the application and notice of hearing, and the appellant failed to attend or respond. Consequently, the court exercised its discretion to dismiss the appeal for want of prosecution, holding that the interests of justice required finality and that the respondent should not continue to suffer prejudice from the delay.
Court Disposition
Appeal dismissed for want of prosecution.
Orders
- The appeal is hereby dismissed for want of prosecution.
- There will be no orders as to costs.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL 117 OF 2008
NJIRU MBIRU...............................................................................APPELLANT
VERSUS
MICHAEL NGARI MURATHO..................................................RESPONDENT
RULING
1. This is an application for dismissal of this appeal for want of prosecution, which is brought by the respondent by way of notice of motion and was filed in this court on 11th December 2015. Additionally, the respondent has also sought an order for provision of costs. The application is supported by the grounds on the face of the motion and is anchored in the respondent's supporting affidavit dated 16th December 2015.
2. In his grounds in support of the motion, the respondent has stated that the appeal was filed in 2008 which is now well over 7 years and has not been prosecuted to date. He has also stated that the appellant has not taken any action after filing his appeal. Finally, he has stated that the judgement of the lower court should be upheld.
3. In his supporting affidavit, the applicant has deponed that he has always been ready and willing to attend court to defend his interests in this appeal. He has further deponed that in April 2009, the appellant filed an amended memorandum of appeal, which was served upon him. He has further deponed that he has suffered prejudice since the filing of this appeal, which has highly inconvenienced him. And finally, he has deponed that the court should dismiss this appeal for want of prosecution.
4. The hearing of this application proceeded in the absence of the appellant after I was satisfied that he was properly served and had adequate notice of hearing.
5. I find that the appeal was filed on 11th December 2008. This was followed by an amended memorandum of appeal which was filed on 3rd April 2009. To date, the appellant has not taken any steps to prosecute his appeal for over 7 years. In the circumstances, find that the appellant has lost interest in his appeal and I hereby allow the respondent's application. The appeal is hereby dismissed for want of prosecution.
6. There will be no orders to costs.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this28thday ofSEPTEMBER2016
In the presence of the respondent and in the absence of the appellant.
Court clerk Njue
J.M. BWONWONGA
JUDGE
18. 09. 16