[2009] KEHC 3136 (KLR)
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal for over five years, despite the lower court record and typed proceedings having been available. The appellant's repeated correspondence with the lower court was deemed routine and not indicative of genuine effort to...
Source-derived case information.
- Citation
- [2009] KEHC 3136 (KLR)
- Parties
- Appellant: South Nyanza Sugar Co. Ltd; Respondent: Charles Onyango Ondieki
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 310 of 2004
- Procedural Posture
- Civil Appeal / Ruling on Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution; stay order discharged
- Judges
- AO Muchelule
- Legal Topics
- Dismissal for Want of Prosecution, Inherent Jurisdiction, Stay of Execution, Record of Appeal, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Co. Ltd
Appellant
Charles Onyango Ondieki
Respondent
Procedural Posture
Civil Appeal / Ruling on Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appellant failed to prosecute the appeal within a reasonable time.
- 2 Whether the court should exercise its inherent jurisdiction to dismiss the appeal for want of prosecution.
- 3 Whether the continued stay of execution causes injustice to the respondent.
Ratio Decidendi
The court found that the appellant had failed to take any meaningful steps to prosecute the appeal for over five years, despite the lower court record and typed proceedings having been available. The appellant's repeated correspondence with the lower court was deemed routine and not indicative of genuine effort to advance the appeal. The court held that the provisions of the Civil Procedure Rules and Act do not preclude the exercise of its inherent jurisdiction to prevent injustice or abuse of process. The continued pendency of the appeal and the stay of execution were causing injustice to the respondent, who was unable to access the proceeds of his judgment. Accordingly, the court...
Court Disposition
appeal dismissed for want of prosecution; stay order discharged
Orders
- The appeal is dismissed with costs to the respondent.
- The stay of execution order is discharged.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL 310 OF 2004
SOUTH NYANZA SUGAR CO. LTD …………………… APPELLANT
VERSUS
CHARLES ONYANGO ONDIEKI ………….........…… RESPONDENT
RULING
The appeal herein was lodged on 3/12/04 against the judgment delivered by the lower court on 12/11/04. On 14/4/05 the parties agreed to have the decretal sum of Kshs.77,280/= deposited into joint account as a condition of stay of execution of the decree pending the hearing and determination of the appeal.
The Memorandum of appeal was not filed with the decree. No certified copy of decree has been filed since.
On 3/12/04 the appellant wrote to the lower court for typed proceedings to enable the filing of appeal. On the same day the appeal was filed. Similar letters were written on 10/1/06, 19/1/06, 1/3/06, 6/4/06, 14/6/06, 17/1/07, 5/3/07, 18/1/08, 20/2/08 and 5/11/08. The record shows that on 7/2/08 the lower court wrote to the appellant’s advocates to let them know the original record had been sent to the High Court. It was with typed proceedings. The record was received by this court on same day of the letter above. The advocates were still writing to court for the proceedings when they had been sent to this court with notice to them. There is no indication at all that the appellant paid for the proceedings, or made a deposit in that regard. It is clear all those letters were a usual and routine exercise on the part of the appellant and do not demonstrate any serious effort to process the appeal which was their legal responsibility.
The court is the one that issued notice to the appellant under Order XL1 rule 31(2)of the Civil Procedure Rules. It was issued on 4/6/09.
It is clear that over one year after the record of the lower court was received in this court the appellant has not taken any action to push the appeal forward. He has not prepared a Record of Appeal. He has not requested for admission of the appeal, and therefore no directions could be given. In all, it is over 5 years and the appeal has not been heard. Order XL1 of the Civil Procedure Rules and Section 79B of the Civil Procedure Act may be seen to be helping the appellant to say the appeal cannot be dismissed. However, the court is empowered under section 3A of the Civil Procedure Act to prevent injustice or abuse of its process. The non-prosecution of this appeal is causing injustice to the respondent who cannot access the proceeds of his judgment. The appeal is clogging the administration of justice in this court. Appeals are filed to be prosecuted. The provisions above are not exclusive of the inherent jurisdiction of this court to do justice and to prevent abuse of its process (Mukisa Biscuit Manufacturing Co. Ltd v. West End Disributors Ltd [1969] EA 698, at page 699).
This appeal is hereby dismissed with costs and the stay order discharged.
Dated, signed and delivered at Kisii this 8th day of July, 2009
A.O. MUCHELULE
JUDGE
8/7/2009
Before A. O. Muchelule J.
Mongare c/c
Mr. Ochillo present
Court:Ruling in open court.
A.O. MUCHELULE
JUDGE