[2019] KEHC 5531 (KLR)
The court found that despite the appellant's claims of having taken steps to obtain certified copies of proceedings and judgment, there was no evidence of serious effort to advance the appeal beyond its initial filing. The record of appeal had not been filed, directions had not been taken, and the matter had not...
Source-derived case information.
- Citation
- [2019] KEHC 5531 (KLR)
- Parties
- Appellant: Stephen Mugwika; Respondent: Nashon Oduor (suing through Jared Vodoshi Ongala as next friend)
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 99 of 2016
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- DN Musyoka
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Record of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Mugwika
Appellant
Nashon Oduor (suing through Jared Vodoshi Ongala as next friend)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appellant's appeal should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the steps taken by the appellant were sufficient to advance the appeal.
Ratio Decidendi
The court found that despite the appellant's claims of having taken steps to obtain certified copies of proceedings and judgment, there was no evidence of serious effort to advance the appeal beyond its initial filing. The record of appeal had not been filed, directions had not been taken, and the matter had not been listed for hearing for over three years. The court was not satisfied with the explanations provided and determined that the delay was inordinate and unjustified. Consequently, the appeal was dismissed for want of prosecution, and costs were awarded to the respondent.
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- The respondent shall have the costs of the appeal.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL APPEAL NO. 99 OF 2016
STEPHEN MUGWIKA.................................................APPELLANT
VERSUS
NASHON ODUOR (suing through
JARED VODOSHI ONGALA as next friend)............RESPONDENT
(An appeal arising from the judgment and decree of the Vihiga Principal Magistrate in Vihiga PMCCC No. 8 of 2014 of 26th February 2014)
RULING
1. The application for determination is dated 13th February 2019. It seeks dismissal of the appellant’s appeal dated 17th November 2016. The grounds upon which it premised are that it is over three years since it was filed yet the appellant was not taking steps to prosecute it.
2. There is a reply to the application. The deponent to the affidavit in reply enumerates the steps that were taken since the filing of the appeal in November 2016. He explains that there was an application for stay of execution argued, after which letters were written to ask for copies of certified proceedings and judgement and that the certified copies of the judgment and proceedings were never delivered.
3. He has attached to his affidavit copies of several documents to support his case. There are copies of letters he alleged to have had written to the court registry requesting for proceedings, among others, which correspondence was never responded to.
4. Directions were given on 25th March 2019 for disposal of the application by way of written submissions. The appellant filed written submissions, the respondent did not. The appellant’s written submissions essentially make oral arguments based of the facts averred in the affidavit sworn in support. No legal arguments are made, no statutory provisions cited nor case law referred to.
5. The record before me is clear. The appeal was filed in 2016. By the time the application was lodged in 2019 the record of appeal had not been filed, directions had not been taken and the matter had not been listed for hearing. I am not satisfied that there was serious effort made to advance the matter beyond filing it.
6. Consequently, I do hereby dismiss the appeal herein. The respondent shall have the costs of the appeal. The appellant has twenty-eight days to move the Court of Appeal appropriately, should he be dissatisfied with this ruling.
DATED, SIGNED and DELIVERED at KAKAMEGA this 26th DAY OF July, 2019
W. MUSYOKA
JUDGE