[2009] KEHC 2738 (KLR)
The court found that the appellant's explanation for the delay in prosecuting the appeal was reasonable and that there was no evidence to suggest the appellant had lost interest in the appeal. The court noted that the applicant's own annexed correspondence supported the appellant's position and that the application...
Source-derived case information.
- Citation
- [2009] KEHC 2738 (KLR)
- Parties
- Appellant: Ply & Panel Limited; Respondent: Wellington W. Lutta
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 133 of 2002
- Procedural Posture
- Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- CN Mugo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ply & Panel Limited
Appellant
Wellington W. Lutta
Respondent
Procedural Posture
Civil Appeal / Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay by the appellant in setting down the appeal for hearing.
- 2 Whether the explanation provided by the appellant for the delay is reasonable.
Ratio Decidendi
The court found that the appellant's explanation for the delay in prosecuting the appeal was reasonable and that there was no evidence to suggest the appellant had lost interest in the appeal. The court noted that the applicant's own annexed correspondence supported the appellant's position and that the application for dismissal had been overtaken by events. Accordingly, the application for dismissal was dismissed, but the applicant was awarded thrown away costs. The court also directed the Deputy Registrar to facilitate the early hearing of the appeal by making the lower court file available and setting a hearing date within 21 days.
Court Disposition
application dismissed
Orders
- The application for dismissal of the appeal is dismissed.
- The applicant is awarded thrown away costs.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL 133 OF 2002
PLY & PANEL LIMITED………………...………APPELLANT
VERSUS
WELLINGTON W. LUTTA...............................RESPONDENT
The applicant in the Chamber Summons dated 13th October, 2008 seeks orders for the dismissal of the appeal filed herein on 3rd August, 2002 and prays that the decretal sum held in Account No. 300-0003197 at Housing Finance Company of Kenya in the joint names of the advocates herein be released to the Respondent/Decree-Holder.
The applicant contends that the Appellant has ignored, refused and/or neglected to set the appeal down for hearing for 6 years, a period the applicant considers to be inordinately long and that the Appellant has shown no signs of any intention to set the appeal down for hearing any time soon.
The application is supported by the Respondent’s advocate’s affidavit of 13th October, 2009 in which he depones that directions for the hearing of the appeal were issued on 12th June, 2007, as is evidenced by the appellant’s letter of 27th March, 2008 annexed to the said affidavit as annexture “WW1”.
The application is opposed on the Grounds of Opposition dated and filed on 15th January, 2009 in which the Appellants cite the several problems encountered in their attempts to file the record of appeal and to have the same set down for hearing. The appellants have submitted in addition to the above grounds that negotiations have been gone into in an attempt to settle the appeal, which is borne out by the contents of annexture “WW1”.
I am of the considered view that the Appellant/respondent’s explanation for the delays herein is reasonable and I have no reason to find that they have lost interest in the appeal. The applicant’s own annexture “WW1” clearly speaks against the application, which I consider to have been overtaken by events. The same is hereby dismissed. The applicant shall, nonetheless, have thrown away costs.
The Deputy Registrar, Nakuru High Court is hereby directed to make available the lower court’s file for appeal purposes and to facilitate the taking of an early hearing date within the next 21 days.
Orders accordingly.
Dated, signed and delivered at Nakuru this 20th day of May 2009
M. G. MUGO
JUDGE