[2012] KEHC 5767 (KLR)
The court found that the appellant had taken sufficient steps towards prosecuting the appeal, including paying for typed proceedings and following up on the file's transfer between courts. The delay was attributed to administrative inefficiencies rather than inaction by the appellant. The court held that the delay...
Source-derived case information.
- Citation
- [2012] KEHC 5767 (KLR)
- Parties
- Appellant: Nyahururu Elite Schools Ltd; Respondent: David Chege Muraya
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 166 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application allowed; appeal reinstated
- Judges
- SP Ouko
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Delay in Prosecution, Order 42 Rule 35
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nyahururu Elite Schools Ltd
Appellant
David Chege Muraya
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution should be set aside.
- 2 Whether the appellant has provided sufficient explanation for the delay in prosecuting the appeal.
- 3 Whether the appeal should be reinstated and the appellant granted time to fix the appeal for hearing.
Ratio Decidendi
The court found that the appellant had taken sufficient steps towards prosecuting the appeal, including paying for typed proceedings and following up on the file's transfer between courts. The delay was attributed to administrative inefficiencies rather than inaction by the appellant. The court held that the delay was not inordinate and that the appellant remained keen to pursue the appeal. No prejudice would be suffered by the respondent if the appeal was reinstated. Consequently, the court exercised its discretion to set aside the order of dismissal and reinstate the appeal, granting the appellant ninety days to prepare the appeal for hearing.
Court Disposition
application allowed; appeal reinstated
Orders
- The order dismissing the appeal is set aside.
- The appeal is reinstated.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT NAKURU
Civil Appeal 166 of 2010
NYAHURURU ELITE SCHOOLS LTD …………….....……….………….APPELLANT
VERSUS
DAVID CHEGE MURAYA……………………………................…………RESPONDENT
R U L I N G
Pursuant to order 42 rule 35(2) of the CivilProcedure Rules 2010 the registrar on notice to the parties listed this appeal before the court for dismissal as the appellant had not set it down for hearing one year after the memorandum of appeal was served. There was no response to the notice to show cause and the appeal was accordingly dismissed. The appellant has now brought the instant application for orders that the orders of dismissal be set aside and the notice to show cause reinstated and thereafter the appeal to be reinstated.
This application was granted by consent of the parties and the notice to show cause why the appeal should not be dismissed reinstated. This ruling therefore relates to the notice to show cause. The appellant has explained that after filing this appeal the lower court failed to avail typed proceedings to enable the appellant prepare record of appeal. Later the file was forwarded to Nakuru High Court. But since there was need to have a signed copy of the decree, the appellant sought to have the file sent back to the lower court at Nyahururu. This was not done promptly with the result that the notice to show was issued. The appellant has pleaded to be given another chance; that the delay was not inordinate pointing out that dismissing the appeal would be a drastic step.
The respondent has maintained that the appeal ought to be dismissed as the appellant has not exhibited seriousness to prosecute the appeal, thereby delaying the respondent from enjoying the fruits of the judgment.
An appellant by dint of order 42 rule 35 (2) foresaid must set down the appeal within1year from the date the memorandum of appeal is served. If within that period the appeal is not set down as aforesaid then the same will be dismissed after a notice has been issued to the parties and no explanation offered by the appellant .
The appellant through counsel has explained the steps they have taken to ensure the appeal is prosecuted. That explanation includes the delay by the court below in failing to promptly supply typed proceedings yet the appellant had paid for them. The file was sent to Nakuru High Court three months later without the proceedings being supplied to the appellant.
I am persuaded that the appellant took sufficient steps towards prosecution of the appeal. The delay is not inordinate and the appellant has demonstrated that it is still keen to pursue the appeal. No prejudice will be suffered by the respondent. The application is allowed and the order dismissing the appeal set aside. The appeal is reinstated and the appellant has ninety (90) days to ensure the appeal is ready for fixing a hearing date.
Costs to the respondent for inconvenience.
Dated, Signed and Delivered at Nakuru this 30th day of July, 2012
W OUKO
JUDGE