[2010] KEHC 2208 (KLR)
The court found that the delay in prosecuting the appeal was not attributable to the appellant, as the lower court file had gone missing and the appellant had made diligent efforts, including writing nine letters and paying for proceedings, to obtain the necessary documents for appeal. Since the appellant could not...
Source-derived case information.
- Citation
- [2010] KEHC 2208 (KLR)
- Parties
- Appellant: South Nyanza Sugar Company Ltd.; Respondent: Omwando Omwando
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 214 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
- Outcome
- application dismissed with costs to the appellant
- Judges
- DK Musinga
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Missing Court File
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
South Nyanza Sugar Company Ltd.
Appellant
Omwando Omwando
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Dismissal of Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay.
- 2 Whether the appellant is to blame for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was not attributable to the appellant, as the lower court file had gone missing and the appellant had made diligent efforts, including writing nine letters and paying for proceedings, to obtain the necessary documents for appeal. Since the appellant could not proceed without the lower court file and had taken reasonable steps to move the process forward, the application for dismissal for want of prosecution was without merit and was dismissed. The court further directed the deputy registrar to conduct a diligent search for the missing file and report back within 30 days.
Court Disposition
application dismissed with costs to the appellant
Orders
- The respondent's application for dismissal of the appeal is dismissed with costs to the appellant.
- The deputy registrar is directed to conduct a diligent search for the subordinate court file and avail a report to the court within 30 days.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII
Civil Appeal 214 of 2006
(BEING AN APPEAL FROM ORIGINAL JUDGMENT AND IN KISII
CMCC NO. 24 OF 2004 – S.M.S. SOITA, SPM)
BETWEEN
SOUTH NYANZA SUGAR COMPANY LTD. …… APPELLANT/RESPONDENT
VERSUS
OMWANDO OMWANDO ………………............…RESPONDENT/APPLICANT
RULING
The respondent’s applicationdated6th November, 2009prays for dismissal of this appeal for want of prosecution.The application was made on grounds that since18th October 2006when the appellant was granted stay of execution of the trial court’s judgment, no action had been taken towards prosecution of the appeal.
The appellant filed replying affidavit and stated,inter alia, that the subordinate court’s file is missing and has since 2007 been writing to the court urging the deputy registrar to have the file traced.So far there has not been any response to numerous enquiries.The appellant paid a sum of Kshs. 300/= way back on25th October, 2007as a deposit for the typed proceedings and judgment.
Upon perusal of this file, I realize that this appeal has never been admitted to hearing.It is also true that the lower court file has gone missing.The appellant’s counsel has written to the court a total of nine letters requesting for the typed proceedings and judgment to facilitate preparation of the record of appeal but the same have so far not been supplied.In the circumstances, the appellant cannot be blamed for the delay in prosecution of the appeal.
The respondent’s application is without merit and I dismiss the same with costs to the appellant.Having done so, I direct the deputy registrar to conduct a diligent search for the subordinate court fileand avail a report to this court on the issue within the next 30 days from the date hereof.Mention on9/7/2010.
DATED, SIGNED AND DELIVERED AT KISII THIS 10TH DAY OF JUNE, 2010.
D. MUSINGA
JUDGE.
10/6/2010
Before D. Musinga, J.
Mobisa – cc
Mrs. Otieno for Mr. Menezes for the Respondent
Mr. Ogari for the applicant
COURT:Ruling delivered in open court on10th June, 2010.
D. MUSINGA
JUDGE.