[2010] KEHC 982 (KLR)
The court found that although the appellant delayed in prosecuting the appeal and failed to include a certified copy of the decree in the record of appeal, there was no evidence that the appellant's advocate was notified of the availability of the proceedings and judgment. The court exercised its discretion not to...
Source-derived case information.
- Citation
- [2010] KEHC 982 (KLR)
- Parties
- Appellant: South Nyanza Sugar Co. Ltd; Respondent: Samson Omenge Moseti
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 341 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- Application for dismissal of appeal dismissed. Directions given for filing of certified decree and further prosecution of appeal.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Record Requirements, Abuse of Court Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Co. Ltd
Appellant
Samson Omenge Moseti
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal 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 failure to include a certified copy of the decree in the record of appeal is fatal to the appeal.
- 3 Whether the appellant was notified of the availability of proceedings and judgment for purposes of compiling the record of appeal.
Ratio Decidendi
The court found that although the appellant delayed in prosecuting the appeal and failed to include a certified copy of the decree in the record of appeal, there was no evidence that the appellant's advocate was notified of the availability of the proceedings and judgment. The court exercised its discretion not to dismiss the appeal, instead directing the appellant to file the certified copy of the decree within 10 days and thereafter set the appeal down for directions. The appellant was ordered to bear the costs of the application.
Court Disposition
Application for dismissal of appeal dismissed. Directions given for filing of certified decree and further prosecution of appeal.
Orders
- The appellant shall file a certified copy of the decree appealed against within 10 days from the date of the ruling.
- Thereafter, the appeal should be set down for directions.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL NO. 341 OF 2005
(Being an appeal from the judgment and decree of the SRM’s courtat Kilgoris in SMCC No. 64 of 2004 – Wilson Kiberia, RM)
BETWEEN
SOUTH NYANZA SUGAR CO. LTD............................................................................................APPELLANT
VERSUS
SAMSON OMENGE MOSETI ..................................................................................................RESPONDENT
RULING
The respondent’s application dated 15th January 2010 was brought under the provisions of sections 1A and 3Aof theCivil Procedure Act. It seeks dismissal of this appeal for being an abuse of the court process and otherwise for lack of prosecution.
In an affidavit sworn by Mr. Don Z. Ogweno, the respondent’s advocate, he stated that the appeal was admitted to hearing on 23rd November, 2006 and the lower court file was forwarded to the High Court on 16th March, 2006 together with the typed and certified copies of the proceedings and judgment. However since then the appellant had not taken any step towards prosecution of the appeal.
Mr. Patrick J. Otieno, the appellant’s advocate, stated in his replying affidavit that after the memorandum of appeal was filed he had made several attempts to get the lower court proceedings and judgment with no success. He had been informed that once the same were ready he would be notified. However, it was only recently that he knew that the proceedings and the judgment were now available. He collected the same and compiled the record of appeal and is awaiting a date for directions to be set. He urged the court to disallow the respondent’s application so that the appeal can be heard on its merits.
The appellant filed its record of appeal on 8th July, 2010 but the same does not contain a certified copy of the decree appealed against. I perused the lower court file and I did not find the decree. That notwithstanding, Bauni, J. admitted the appeal to hearing on 16th November 2006 and not on 23rd November 2006 as stated by Mr. Ogweno. As at that date the lower court file had already been availed to this court. The certified copies of the proceedings and judgment were in the file as at the said date. There is however no indication that the appellant’s advocate was notified that the same were available for collection.
In the circumstances, I will not dismiss the appeal as sought but direct that a certified copy of the decree appealed against be filed within the next 10 days from the date hereof. Thereafter the appeal should be set down for directions. The appellant shall bear the costs of this application.
DATED, SIGNED AND DELIVERED AT KISII THIS 29TH DAY OF JULY, 2010.
D. MUSINGA
JUDGE.
29/7/2010
Before D. Musinga, J.
Mobisa – cc
Mr. Otieno for Mr. P.J. Otieno for the Appellant
Mr. Ogweno for the Respondent
Court: Ruling delivered in open court on 29th July, 2010.
D. MUSINGA
JUDGE.