[2019] KEHC 1241 (KLR)
Although there was delay and laxity on the part of the appellant in prosecuting the appeal and complying with court orders, the record of appeal had ultimately been filed. The court found that dismissing the appeal at this stage would not serve the interest of justice, especially since the respondent did not object...
Source-derived case information.
- Citation
- [2019] KEHC 1241 (KLR)
- Parties
- Appellant: Raphael Mutuma Mwiti; Respondent: Florence Mukonyo Maingi
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 239 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Timelines, Record of Appeal Filing, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Raphael Mutuma Mwiti
Appellant
Florence Mukonyo Maingi
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 delay by the appellant.
- 2 Whether the appeal should be dismissed for being filed out of time without leave of the court.
Ratio Decidendi
Although there was delay and laxity on the part of the appellant in prosecuting the appeal and complying with court orders, the record of appeal had ultimately been filed. The court found that dismissing the appeal at this stage would not serve the interest of justice, especially since the respondent did not object to the late filing of the record of appeal. The application for dismissal was therefore denied, but the appellant was ordered to pay the costs occasioned by the application. The court directed that the lower court file be availed to facilitate the admission and hearing of the appeal on its merits.
Court Disposition
application dismissed
Orders
- The application dated 27th May, 2017 is dismissed.
- The appellant shall pay the costs occasioned by this application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 239 OF 2017
RAPHAEL MUTUMA MWITI..........................APPELLANT/RESPONDENT
VERSUS
FLORENCE MUKONYO MAINGI................RESPONDENT/APPLICANT
RULING
In the application dated 27th May, 2017 the applicant sought the dismissal of appeal for want of prosecution, and in the alternative the appeal be dismissed for being filed out of time without leave of the court. There are grounds appearing on the face of the record alongside an affidavit sworn by Cosmas Ngala on 27th May, 2019.
The judgment that led to the appeal was delivered on 7th October, 2016. The appellant filed a Memorandum of Appeal but thereafter did not pursue copies of the proceedings and judgment to prepare the record of appeal. As at the time of writing this ruling, there were two documents, one dated 17th July, and filed on the same day with a title “certified correct and prepared to accord with copies as supplied by the subordinate court”. The second is dated 26th and filed on 27th August, 2019 with a title “supplementary record of appeal”. Both these documents were filed without leave of the court. However, no issue has been raised by the respondent relating to the said late filing.
There has been laxity on the part of the appellant who even by 14th October, 2019 had not complied with the order to file submissions to the Notice of Motion. That notwithstanding, bearing in mind that now the record of appeal has been filed, it will not be in the interest of justice to dismiss the appeal for want of prosecution as sought by the applicant in the application before me. Accordingly, the application is dismissed but the appellant shall pay the costs occasioned by this application. The lower court file shall now be availed to facilitate the admission of the appeal and directions so that the appeal can be heard and determined on merit.
Dated, signed and delivered at Nairobi this 19th day of December, 2019.
A. MBOGHOLI MSAGHA
JUDGE