[2014] KEHC 2156 (KLR)
The court found that while there was delay in prosecuting the appeal, the appellants had provided some evidence of efforts to obtain the lower court file and proceedings, including correspondence with the court. Although the evidence was not entirely satisfactory, the court exercised its discretion in favour of the...
Source-derived case information.
- Citation
- [2014] KEHC 2156 (KLR)
- Parties
- Appellant: Peter N. Kariuki; Appellant: Bernard Karari Mungai; Respondent: Gathigia Kaguruku (suing as administrator of the Estate of Benjamin Mwangi Githaiga)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 633 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Application to dismiss appeal for want of prosecution dismissed. Appellants granted six months to file and serve record of appeal and take directions, failing which appeal stands dismissed with costs to respondent.
- Judges
- REA Ougo
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Record of Appeal Filing, Court File Missing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter N. Kariuki
Appellant
Bernard Karari Mungai
Appellant
Gathigia Kaguruku (suing as administrator of the Estate of Benjamin Mwangi Githaiga)
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 the appellants' delay in taking steps to prosecute the appeal.
- 2 Whether the appellants have provided sufficient justification for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that while there was delay in prosecuting the appeal, the appellants had provided some evidence of efforts to obtain the lower court file and proceedings, including correspondence with the court. Although the evidence was not entirely satisfactory, the court exercised its discretion in favour of the appellants, giving them the benefit of doubt due to the possibility that the court file was genuinely missing. The court declined to dismiss the appeal for want of prosecution but imposed a strict timeline for the appellants to prepare, file, and serve the record of appeal and take directions within six months, failing which the appeal would stand dismissed with costs to the...
Court Disposition
Application to dismiss appeal for want of prosecution dismissed. Appellants granted six months to file and serve record of appeal and take directions, failing which appeal stands dismissed with costs to respondent.
Orders
- Appellants shall prepare, file and serve the record of appeal within six (6) months from the date of this ruling.
- Appellants shall take directions within the said period.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 633 OF 2012
PETER N. KARIUKI
BERNARD KARARI MUNGAI ..................................................APPELLANTS
VERSUS
GATHIGIA KAGURUKU (suing as administrator of the Estate of
BENJAMIN MWANGI GITHAIGA ….......................................... RESPONDENT
RULING
1. The application before this Court is a Notice of Motion dated 10th March 2014 brought under Order 42 Rule 35(2) and Order 51 rule 1 of Civil Procedure Rules, 2010 and Sections 1A, 1B, & 3A OF Civil Procedure Act and Article 159 of the Constitution. The applicant seeks that the applicant’s appeal be dismissed for want of prosecution and seeks costs of the application and of the entire appeal.
2. The applicant relies on the grounds on the face of the application and the affidavit of Githaiga Kaguruki. The applicant contends that the appellant filed a Memorandum of Appeal on 22/11/12 against the Lower court’s judgment; that since the appellant hasn’t taken any steps to prosecute the appeal; that the applicants have never requested for the proceedings of the Lower Court in CMCC 586 of 2008; that the appellants aren’t keen on prosecuting the appeal to its conclusion; that the delay in taking steps to prosecute the appeal unduly prejudices him and he is unable to enjoy the fruits of the judgment.
3. The appellant opposed the application and filed a replying affidavit sworn by Mr. Sammy Munywoki a Court clerk working with the firm of Okong’o Omogeni & Co. Advocates, plus the affidavit of Mr. Frank Walukwe. It is deponed that they requested for the Lower Court’s proceedings in the matter vide a letter dated 29/11/12 and have religiously followed up the progress of the documents but to date he hasn’t been able to trace the Court file; that the in availability of the documents is not as a result of their commission or omission on the part of the appellant or the advocates on record.
4. Counsel’s for the parties made oral submissions in Court. The applicant’s counsel reiterated what is deponed in their affidavits. I have considered all what is deponed by all parties; it is not in doubt that the Memorandum of appeal was filed in Court on 22/11/12 from a judgment delivered on 23/10/12; a day before the 30 days stay for filing an appeal expired. It is the appellants contention that the Lower court file has been missing. They have annexed a letter dated 22/11/12 where they wrote to the Executive Officer seeking for a certified copy of decree and judgment. Since the appellant has not written another the letter. Mr. Munywoki stated that he has been following up on the file. There is no evidence to support, should I believe him? It could be that the Court file has been missing. I’ll give the appellant the benefit of doubt and will not dismiss the appeal as sought. I’ll give the appellant a chance to be heard. The appellant shall prepare, file and serve the record of appeal within six (6) months from the date of this ruling and also take directions within the said period in default the appeal shall stand dismissed with costs to the respondents.
Orders accordingly.
Dated, signed and delivered this 23rd day of July 2014.
R.E. OUGO
JUDGE
In the presence of:-
……………….………………..………………………… For the Plaintiff/Respondent
……………………………………………….…………For the Defendants/Applicant
……………………………………………………………..…………………Court clerk