[2008] KEHC 1692 (KLR)
The court found that although the appellant had delayed in prosecuting the appeal, the respondent had not taken the available procedural step of fixing the appeal for hearing and serving notice on the appellant before seeking dismissal. The law provides that the respondent may fix the matter for hearing if the...
Source-derived case information.
- Citation
- [2008] KEHC 1692 (KLR)
- Parties
- Appellant: Njoka Tanners Ltd; Respondent: Catherine Kagwiria
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 24 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- J Karanja
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Fixing Hearing Dates
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njoka Tanners Ltd
Appellant
Catherine Kagwiria
Respondent
Procedural Posture
Civil Appeal / Ruling on 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 was obligated to fix the appeal for hearing before seeking dismissal.
Ratio Decidendi
The court found that although the appellant had delayed in prosecuting the appeal, the respondent had not taken the available procedural step of fixing the appeal for hearing and serving notice on the appellant before seeking dismissal. The law provides that the respondent may fix the matter for hearing if the appellant fails to do so. Since the appellant expressed continued interest in pursuing the appeal, the court exercised its discretion to give the appellant a final opportunity to fix the appeal for hearing within a specified period, failing which the appeal would be dismissed. The application for dismissal was therefore denied, with no order as to costs.
Court Disposition
application dismissed
Orders
- The application dated 9/4/2008 is dismissed with no order as to costs.
- The appellant is to fix the appeal for hearing within 10 days from the date hereof, failing which the court will dismiss the appeal.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL 24 OF 2000
NJOKA TANNERS LTD.......................APPLICANT
VERSUS
CATHERINE KAGWIRIA................RESPONDENT
RULING
The Respondent in this appeal has moved the court seeking the dismissal of this appeal for want of prosecution. He has deponed that the appeal was filed in 2000 and admitted in 2001. Directions were taken on 5/3/2001 but since that time, the Appellant has not moved this court for the appeal to be heard thus necessitating his application.
I have considered the application along with the rival affidavits. I have also given due consideration to counsel’s oral submissions in court. It cannot be disputed that the appeal has actually taken too long to be heard what I have not been able to establish from the record is whether there was any execution or depositing of the decretal amount in court. I note however that when a party who is charged with the responsibility of fixing his case for hearing drags his feet, the other party can always fix the matter for hearing and serve the hearing notice on the sleeping party. If this fails to nudge the sleeping party into action, then the respondent would have a good justification to ask the court to dismiss the matter. Even the law gives this as the first option. As rightly submitted by Mr. Muriithi therefore, the Respondent could have fixed the appeal for hearing themselves before moving the court to dismiss the appeal. Having not done so and since counsel for the appellant says that they are still interested in pursuing this appeal, I will give them a last chance to do so.
The application dated 9/4/2008 is therefore dismissed with no order as to costs. Appellant to fix the appeal for hearing within 10 days from the date hereof failing which the court will dismiss the appeal in question.
W. KARANJA
JUDGE
Delivered signed and dated at Embu this 28th day of July, 2008.
In presence of:-