[2009] KEHC 2553 (KLR)
The court found that the appellant failed to comply with the explicit court order requiring the record of appeal to be filed within 21 days from 10th March, 2009. The record was filed out of time and only after the respondent had filed the motion to strike out. The appellant did not seek leave to extend time or...
Source-derived case information.
- Citation
- [2009] KEHC 2553 (KLR)
- Parties
- Appellant: Sofitra Limited; Respondent: Julia Opondo Okere; Respondent: Akamba Bus Services Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 431 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Motion to Strike Out Appeal
- Outcome
- appeal struck out for abuse of process and non-compliance with court order
- Judges
- GG Okwengu
- Legal Topics
- Dismissal for Want of Prosecution, Striking Out Appeal, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sofitra Limited
Appellant
Julia Opondo Okere
Respondent
Akamba Bus Services Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Strike Out Appeal
Legal Issues
- 1 Whether the appeal should be struck out for failure to comply with the court's order to file the record of appeal within the stipulated time.
- 2 Whether the appellant's conduct amounts to an abuse of the court process.
Ratio Decidendi
The court found that the appellant failed to comply with the explicit court order requiring the record of appeal to be filed within 21 days from 10th March, 2009. The record was filed out of time and only after the respondent had filed the motion to strike out. The appellant did not seek leave to extend time or regularize the late filing. The court concluded that the appellant's conduct demonstrated a lack of interest in prosecuting the appeal and amounted to an abuse of the court process. Consequently, the court struck out both the record of appeal and the appeal itself.
Court Disposition
appeal struck out for abuse of process and non-compliance with court order
Orders
- The record of appeal filed on 15th April, 2009 is struck out.
- The appeal is struck out as an abuse of the process of the court.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
(MILIMANI LAW COURTS)
CIVIL APPEAL 431 OF 2005
SOFITRA LIMITED………….....………………...……...APPELLANT
VERSUS
JULIA OPONDO OKERE…………...1ST RESPONDENT/APPLICANT
AKAMBA BUS SERVICES LIMITED…………......2ND
RESPONDENT
R U L I N G
1. By a notice of motion dated 1st April, 2009, Julia Opondo Okere, who is the 1st respondent, (hereinafter referred to as the applicant) in this appeal, moved this court for orders inter alia, that the appeal be and is dismissed for want of prosecution, in the alternative that the appeal be and is struck out or dismissed for being an abuse of court process. The applicant also sought an order that the conditional stay of execution issued on 24th August, 2005 in Nairobi CMCC No.9982 of 2002 be vacated.
2. At the hearing of this application, the applicant abandoned the prayer for dismissal of the appeal, and proceeded with the alternative prayer for striking out. The applicant has filed a supporting affidavit in which she maintains that the appellant has failed to prosecute its appeal, despite an order made on 10th March, 2009, directing the appellant to file its record of appeal within 21 days. Instead a record of appeal has been filed outside that time without any leave of the court.
3. The applicant maintains that she is suffering injustice as a result of the appellant’s inactivity as there is an order for stay of execution in force, thereby denying her the benefit of the judgment given in her favour by the lower court.
4. Sofitra Limited who is the appellant herein, objects to this application. Grounds of objection have been filed contending that the application has been overtaken by events, as there is on record a duly signed and served record of appeal. It is further maintained that the application is misconceived as the provisions of Order XLI Rule 8B of the Civil Procedure Rules have not been complied with. The court was therefore urged to dismiss the application.
5. From the court record it is apparent that the appellant was given 21 days to file its record of appeal from 10th March, 2009. The record of appeal was filed in court on 15th April, 2009. It is evident that that record was filed out of time and was only filed after the respondent had filed its motion. The appellant cannot ignore the court order which clearly says that the appeal was to be filed within 21 days from 10th March, 2009. The appellant has not even attempted to have time extended to enable it file the record of appeal or have the record filed on 15th April, 2009, deemed as properly filed.
6. From the luckluster way in which the appellant is behaving, it is evident that the appellant is not interested in prosecuting the appeal. I therefore allow the applicant’s motion, strike out the record of appeal filed on 15th April, 2009 and further strike out the appeal as being an abuse of the process of the court as the appellant is clearly not interested in prosecuting it.
Those shall be the orders of the court.
Dated and delivered this 19th day of May, 2009
H. M. OKWENGU
JUDGE
In the presence of: -
Miss Onyango H/B for the appellant
Obwayo for the 1st respondent/Applicant
Miss Onyango for the 2nd respondent