[2018] KEHC 495 (KLR)
The court found that the appellant, through counsel, provided a plausible and sufficient explanation for the delay in prosecuting the appeal, namely, that the appeal had not yet been admitted and that efforts had been made to move the matter forward. In the interests of justice, and considering that the appellant...
Source-derived case information.
- Citation
- [2018] KEHC 495 (KLR)
- Parties
- Appellant: Stephen Nganga Kahiga; Respondent: The Honourable Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 528 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause Regarding Delay in Prosecution
- Outcome
- Appeal not dismissed; appellant granted 90 days to prosecute the appeal.
- Judges
- LM Njuguna
- Legal Topics
- Delay in Prosecution, Notice to Show Cause, Appeal Admission, Record of Appeal, Case Management
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Stephen Nganga Kahiga
Appellant
The Honourable Attorney General
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause Regarding Delay in Prosecution
Legal Issues
- 1 Whether the delay in prosecuting the appeal is justified.
- 2 Whether the appeal should be dismissed for want of prosecution.
Ratio Decidendi
The court found that the appellant, through counsel, provided a plausible and sufficient explanation for the delay in prosecuting the appeal, namely, that the appeal had not yet been admitted and that efforts had been made to move the matter forward. In the interests of justice, and considering that the appellant had demonstrated readiness to prosecute the appeal by filing the Record of Appeal and making inquiries to the court, the court determined that the appeal should not be dismissed at this stage. However, given the age of the matter, the court imposed a strict timeline, ordering that the appeal must be prosecuted within 90 days, failing which it would stand dismissed automatically.
Court Disposition
Appeal not dismissed; appellant granted 90 days to prosecute the appeal.
Orders
- The appellant shall prosecute the appeal within 90 days from the date of this ruling.
- If the appeal is not prosecuted within 90 days, it shall stand dismissed.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 528 OF 2013
STEPHEN NGANGA KAHIGA................................APPELLANT
VERSUS
THE HONOURABLE ATTORNEY GENERAL...RESPONDENT
(Appeal from the Judgment of Honourable T.W. Wamae (Mrs.) Senior Resident Magistrate
at Nairobi delivered on 26th August 2004 in CMCC No. 10380 of 2013)
RULING
The matter herein was listed for notice to show cause on the 27th day of July, 2018. In response to the notice, counsel for the plaintiff filed an affidavit on the 19th day of July 2018 sworn by Zacharia Nganga Ngigi advocate, who is in conduct of the Appeal on behalf of the Appellant.
In the said affidavit, he avers that he has been following up the matter and on the 26th July 2018, he wrote to the Deputy Registrar enquiring whether the Appeal had been admitted. That vide a letter dated 19th February, 2018 he had written to the Deputy Registrar requesting for the file to be placed before a Judge for directions only to be told that the Appeal had not yet been admitted.
He avers that the Appellant has been ready and willing to prosecute the same as he has already filed a Record of Appeal.
The court has considered the affidavit and the reasons given for the delay in prosecuting the Appeal. Counsel for the Appellant has given a plausible reason why the Appeal has not been prosecuted. It is in the interest of justice that the Appellant be allowed to prosecute the same.
This being an old matter, the same should be prosecuted within 90 days failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 4th day of October, 2018
.......................
L. NJUGUNA
JUDGE
In the presence of:
..........................................For the Appellant
....................................... For the Respondent