[2024] KEHC 769 (KLR)

Source-derived case information.

Citation: [2024] KEHC 769 (KLR)
Parties: Appellant: Leonard Odhiambo Odero; Appellant: Andrew Mukele Otuchi; Appellant: Paul Waititu Ndungu; Respondent: Paulus Ouma Nyambutue
Court: High Court
Court Station: High Court at Kisumu
Jurisdiction: Kenya
Case Number: Civil Appeal E015 of 2022
Procedural Posture: Civil Appeal / Ruling on Compliance With Court Directions and Dismissal for Non Compliance
Outcome: appeal dismissed for non-compliance with court directions
Judges: RE Aburili
Legal Topics: Appeal Dismissal, Non Compliance With Court Orders, Stay of Execution, Security for Due Performance
Source Language: en

Civil Procedure Appeal Dismissal Non Compliance With Court Orders Stay of Execution Security for Due Performance

Source-derived case record

Summary, issues, holding and outcome

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Parties

Leonard Odhiambo Odero

Appellant

Andrew Mukele Otuchi

Appellant

Paul Waititu Ndungu

Appellant

Paulus Ouma Nyambutue

Respondent

Procedural Posture

Civil Appeal / Ruling on Compliance With Court Directions and Dismissal for Non Compliance

Legal Issues

1 Whether the appellants complied with the court's directions to file and serve the record of appeal and submissions within the stipulated timelines.
2 Whether non-compliance with court directions warrants dismissal of the appeal and vacation of stay orders.
3 Whether the security deposited as a bank guarantee should be released to the respondent upon dismissal.

Ratio Decidendi

The appellants failed to comply with the court's explicit directions to file and serve the record of appeal and written submissions within the prescribed period, despite being duly served with the orders. The court found no record of appeal or submissions filed or served, and the appellants were absent at the mention. The court exercised its discretion to dismiss the appeal for non-compliance, vacated the conditional stay of execution, and ordered the release of the bank guarantee amount to the respondent's advocate. The court further directed that each party bear their own costs, emphasizing the importance of adherence to procedural timelines and court orders in appellate proceedings.

Court Disposition

appeal dismissed for non-compliance with court directions

Orders

The appeal is dismissed for non-compliance with court directions served on 5th December 2023.
The conditional stay of execution orders granted by this court are vacated.

Full Case Text

Judgment text and source record

27 paragraphs

Odero & 2 others v Nyambutue (Civil Appeal E015 of 2022) [2024] KEHC 769 (KLR) (1 February 2024) (Ruling)

Neutral citation: [2024] KEHC 769 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E015 of 2022

RE Aburili, J

February 1, 2024

Between

Leonard Odhiambo Odero

1st Appellant

Andrew Mukele Otuchi

2nd Appellant

Paul Waititu Ndungu

3rd Appellant

and

Paulus Ouma Nyambutue

Respondent

Ruling

1. On 1st December 2023, this court admitted this appeal to hearing after receiving the trial court file. The court then directed the Appellant to file and serve a record of appeal within 21 days thereof together with written submissions and the Respondent to file and serve submissions within 10 days of date of service.

2. This appeal is for mention today to confirm compliance and to fix a judgment date. It is now 10. 20am and only the Respondent’s counsel Mr. Maube is present.

3. The e-filing portal has been checked and no record of appeal or submissions have been filed or served.

4. This appeal, upon being filed, a stay of execution was granted on condition.

5. A Bank Guarantee dated 19th May 2022 No. Ref. 00xxxxxxxxxx issued by Family Bank for Kshs.500,000 (Five Hundred Thousand) was deposited as security for due performance of decree as the other Kshs.500,000 was paid to the Respondent’s counsel.

6. As the Appellant has not complied with this court’s direction given on 1st December 2023 and served via email on 5th December 2023, I hereby dismiss this appeal for non compliance with the court’s directions served on 5th December 2023 and vacate the conditional stay of execution orders granted by this court and order that Family Bank do pay to the Respondent’s advocate Maube Muyeya & Associates who are on record for the Respondent, the sum of Kshs.500,000 the amount in the Bank Guarantee No. Ref. 00xxxxxxxxx dated 19th May 2023, upon service of this order upon the said Bank.

7. Each party shall bear their own costs of this appeal as dismissed and the file is closed.

8. This Ruling and order to be typed forthwith.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 1ST DAY OF FEBRUARY, 2024R.E. ABURILIJUDGE

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