[2012] KEHC 1373 (KLR)
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal for a prolonged period, specifically for the last two years. The appellant admitted the delay and failed to provide any valid or substantiated reasons for it, nor did he demonstrate any attempt to obtain the lower...
Source-derived case information.
- Citation
- [2012] KEHC 1373 (KLR)
- Parties
- Appellant: Solomon Ogot; Respondent: Wilfred Wasonga Owino; Respondent: Stephen Juma
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 182 of 2002
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DA Onyancha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Solomon Ogot
Appellant
Wilfred Wasonga Owino
Respondent
Stephen Juma
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 inordinate delay by the appellant.
- 2 Whether the appellant provided sufficient justification for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal for a prolonged period, specifically for the last two years. The appellant admitted the delay and failed to provide any valid or substantiated reasons for it, nor did he demonstrate any attempt to obtain the lower court records necessary for the appeal. The court was satisfied that the delay was inordinate and unjustified, and that the interests of justice required the dismissal of the appeal for want of prosecution. The application to dismiss the appeal was therefore granted, with costs awarded to the applicant/respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the applicant/respondent, both in this court and the lower court.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Appeal 182 of 2002 [if !mso]> <style> v:* {behavior:url(#default#VML);} o:* {behavior:url(#default#VML);} w:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);} </style> <![endif][if gte mso 9]><![endif][if gte mso 9]><xml>
Normal 0
false false false
EN-US X-NONE X-NONE
</xml><![endif][if gte mso 9]><![endif][if gte mso 10]> <style> /* Style Definitions */ table.MsoNormalTable {mso-style-name:"Table Normal"; mso-style-parent:""; line-height:115%; font-size:11. 0pt;"Calibri","sans-serif"; mso-bidi-"Times New Roman";} </style> <![endif]
SOLOMON OGOT................................ APPLICANT/RESPONDENT
VERSUS
WILFRED WASONGA OWINO....................... 1ST RESPONDENT
STEPHEN JUMA. ........................................... 2ND RESPONDENT
R U L I N G
The application before the court is a Notice of Motion dated 30th May, 2012 filed by the Respondent /Decree Holder. It seeks the dismissal of the appeal for want of prosecution.
The record shows that the appeal was filed by a Memorandum of Appeal filed on 24th April, 2012 and dated 23rd April, 2012. When this application was prosecuted on 17th September, 2012, Mr. Amuga for Respondent/Appellant conceded that no relevant action to move the appeal to disposal had been taken by Appellant. No record of appeal has ever been filed and served. Nor have the relevant directions ever been fixed to be taken. On the other hand, no execution of the decree could be made since the Appellant had sought and obtained a stay of execution.
Looked upon to explain the reason for delay, the Appellant though Mr. Amuga could only sadly that they had not managed to obtain the lower court records to enable them take other necessary steps. Mr. Amuga did not and probably could not support his ground for delay. He had not annexed any documents to show attempt to obtain the lower tribunals record for the purpose of the appeal.
I have carefully considered this application. The same is not seriously nor justifiably opposed. The Appellant admits delay. He fails to give valid reasons for delay. He fails to show that he ever attempted to obtain the lower tribunals record in any way.
In the above circumstances, the court is reasonably persuaded that the Appellant without reasonable cause failed to prosecute this appeal over a long period and in particular, for the last two years. The application to dismiss it is accordingly meritorious and is hereby granted as prayed, with costs to the Applicant. To that end, the appeal is hereby dismissed also with costs here and below. Orders accordingly.
Dated and delivered at Nairobi this 5th day of November, 2012.
............................................................
D A ONYANCHA
JUDGE