[2012] KEHC 2560 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for almost two years after being granted time to file the record of appeal. The appellant did not respond to the application for dismissal or provide any explanation for the delay. The court held that there was no justification...
Source-derived case information.
- Citation
- [2012] KEHC 2560 (KLR)
- Parties
- Appellant: Paul Mwangi Maina; Respondent: Stephen Kimani Kamau; Respondent: Mary Wambui Wambugu; Respondent: Stephen Njenga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 127 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DO Ohungo
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Record of Appeal, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Mwangi Maina
Appellant
Stephen Kimani Kamau
Respondent
Mary Wambui Wambugu
Respondent
Stephen Njenga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction by the appellant.
- 2 Whether the appellant has demonstrated any interest or initiative in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for almost two years after being granted time to file the record of appeal. The appellant did not respond to the application for dismissal or provide any explanation for the delay. The court held that there was no justification for keeping the appeal alive in the absence of any initiative or interest from the appellant. Accordingly, the appeal was dismissed for want of prosecution, with costs awarded to the respondents.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT NAKURU
Civil Appeal 127 of 2009
PAUL MWANGI MAINA ………...........................……………. APPELLANT
VERSUS
STEPHEN KIMANI KAMAU ……............................…….. 1ST RESPONDENT
MARY WAMBUI WAMBUGU …….........................….… 2ND RESPONDENT
STEPHEN NJENGA …………….........................………. 3RD RESPONDENT
RULING
The Notice of Motion dated 1st August 2011 is made pursuant to provisions of Order 42 Rule 35 Civil Procedure Rules, seeking that the appeal filed herein be dismissed for want of prosecution.
It is premised on grounds that the appellant is disinterested in the appeal and has not shown any initiative for the last twelve months.
The application is supported by the affidavit sworn by STEPHEN KIMANI KAMAU (1st Respondent in the Appeal) who states that the appellant lodged the appeal on 26/01/2009 but is not committed to ensure the expeditious hearing of the appeal and it is in the interest of justice that the appeal should be dismissed.
The application was served on the appellant on 7/9/2011 at 2. 15 p.m., but he declined to sign acknowledgment of service. From the court record, when the matter came up on 02/02/2010, the appellant requested the court for time to file a record of appeal and he was given 60 (sixty) days to do so. However nothing ever took place almost two years later. It seems the appellant has lost interest in the matter, to the extent that he does not find it necessary to move the court regarding his appeal by filing the record of appeal, or even responding to the application for dismissal. There is no reason whatsoever to warrant keeping this matter alive, and the appeal herein is dismissed with costs for want of prosecution.
Delivered and dated this 18th day of May, 2012 at Nakuru.
H.A. OMONDI
JUDGE