[2006] KEHC 3220 (KLR)
The court found that the appellant's advocate's explanation for the delay was unconvincing, noting that the firm of Maranga Maosa & Associates had been on record since 2004 but had taken no meaningful steps to prosecute the appeal after filing the record of appeal. The court concluded that the appellant had been...
Source-derived case information.
- Citation
- [2006] KEHC 3220 (KLR)
- Parties
- Appellant: Said Salim Rajab; Respondent: John Oluoch Sigo; Respondent: 2 Others
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 85 of 1994
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Directions in Appeals
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Said Salim Rajab
Appellant
John Oluoch Sigo
Respondent
2 Others
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution under Order XLI rule 31(2) of the Civil Procedure Rules.
- 2 Whether the reasons advanced by the appellant's advocate justify the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant's advocate's explanation for the delay was unconvincing, noting that the firm of Maranga Maosa & Associates had been on record since 2004 but had taken no meaningful steps to prosecute the appeal after filing the record of appeal. The court concluded that the appellant had been indolent and only responded after being prompted by the dismissal notice. In the absence of any satisfactory reason for the delay, and pursuant to Order XLI rule 31(2) of the Civil Procedure Rules, the court exercised its discretion to dismiss the appeal for want of prosecution.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- No order as to costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL 85 OF 1994
SAID SALIM RAJAB ……………………………..............................................………….PLAINTIFF
VERSUS
JOHN OLUOCH SIGO & 2 OTHERS ………..........................................……….RESPONDENTS
R U L I N G
This appeal was filed on the 5th day of October 1994. The same was admitted to hearing on the 13th day of October 1998. So far directions have not been given. No reasons have been given as to why the appeal has not been listed for directions either before the Deputy Registrar or before the Judge.
Pursuant to the provisions of order XLI rule 31 (2) Civil Procedure Rules, the Deputy Registrar issued a notice for dismissal of the appeal for Want of prosecution.
Mr. Maosa advocate for the appellant beseeched this court to spare the appeal for a while because he just came on record for the appellant the other day and that he is yet to serve the memorandum of appeal upon the 1st and 2nd Respondent by substituted service upon obtaining leave of court.
I have perused the record of Appeal. It is clear that the firm of Maranga Maosa & Associates came on record in the year 2004. It is not clear as to what that firm of advocates has been doing since then. It just came on record, prepared a record of appeal and filed it on 24th September 2004. From then it developed cold feet and went to sleep. The appellant’s sleep appears to have been rudely interrupted by the dismissal notice issued by the Deputy Registrar of this court.
I see no merit in the excuses put forward by Mr. Maosa for the appellant. Consequently the appeal is ordered dismissed for want of prosecution with no order as to costs.
Dated and delivered this 10th day of February 2006.
J.K. SERGON
J U D G E
Read in the presence of Mr. Maosa for the Appellant and
Mr. Khatib h/b for Kadima for the 3rd Respondent.