[2016] KEHC 5347 (KLR)
The court found that the appellant had failed to comply with the conditional stay order requiring the appeal to be heard within 2014 and had not taken any steps for over two years to prosecute the appeal or seek enlargement of time. No explanation was provided for the delay, and the application for dismissal was...
Source-derived case information.
- Citation
- [2016] KEHC 5347 (KLR)
- Parties
- Appellant: Paul Kithinji Ikiugu; Respondent: Ntima Farmers Co-operative Society Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 581 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution. Respondent granted leave to execute decree in Nairobi CTC No. 82/2007. Costs awarded to respondent.
- Judges
- RE Aburili
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Stay of Execution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kithinji Ikiugu
Appellant
Ntima Farmers Co-operative Society Limited
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 is entitled to execute the decree in Nairobi CTC No. 82/2007.
- 3 Whether costs should be awarded to the respondent for the appeal and the application.
Ratio Decidendi
The court found that the appellant had failed to comply with the conditional stay order requiring the appeal to be heard within 2014 and had not taken any steps for over two years to prosecute the appeal or seek enlargement of time. No explanation was provided for the delay, and the application for dismissal was unopposed. The court exercised its discretion to dismiss the appeal for want of prosecution, holding that delay defeats equity and is contrary to the constitutional imperative for expeditious justice. The respondent was granted liberty to execute the decree in Nairobi CTC No. 82/2007 and awarded costs of both the appeal and the application.
Court Disposition
Appeal dismissed for want of prosecution. Respondent granted leave to execute decree in Nairobi CTC No. 82/2007. Costs awarded to respondent.
Orders
- The appeal is dismissed for want of prosecution.
- The respondent is at liberty to execute the decree in Nairobi CTC No. 82/2007.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 581 OF 2013
PAUL KITHINJI IKIUGU……………………………APPELLANT
VERSUS
NTIMA FARMERS CO-OPERATIVE SOCIETY LIMITED……………….RESPONDENT
RULING
The respondent/applicant’s application dated 11th February 2016 seeks for dismissal of this appeal for want of prosecution. It is brought under Order 42 Rule 35 of the Civil Procedure Rules albeit the cited provisions are different which in any event is non fatal to the application. The applicant also seeks for leave to execute in Nairobi CTC O. 82/2007 plus costs of the appeal and application.
The application is not opposed despite evidence of service upon the appellant/respondent being provided.
I have considered the submissions by Mr Mwarania advocate in support of the application which is based on the grounds on the face of the application and the supporting affidavit of Linet Gatuiri Nkonge sworn on 11th February 2016. I am satisfied that there has been disobedience/violation of the orders of 27th January 2014 issued by the Honourable Ougo J that there be stay of execution on condition that the appeal be heard within the year 2014. It is now two years and two months after the issuance of the said orders and the appellant has not taken any action to have that period enlarged or even to prepare the record of appeal to facilitate admission of the appeal or to have directions taken in readiness for the hearing and disposal of the appeal.
Delay defeats equity and delay is abhorred by Article 159 of the Constitution. In the absence of any explanation why this appeal is still unheard and or steps taken to have it heard despite the availability of the Cooperatives Tribunal file, I hereby exercise my discretion and grant the orders sought in the application dated 11th February 2016 as prayed. The appeal herein is dismissed for want of prosecution and the respondent is at liberty to execute decree in Nairobi CTC No. 82/2007. The respondent/applicant is also awarded costs of this dismissed appeal and costs of the application to be assessed.
Orders accordingly.
Dated, signed and delivered in open court at Nairobi this 19th day of April, 2016
R.E. ABURILI
JUDGE
19/4/2016.
In the presence of Mr Mwarania Counsel for the Respondent/Applicant
N/A for the Appellant/Respondent
CA: Henry