[2024] KEHC 10942 (KLR)
The court found that the appellant had demonstrated no interest in prosecuting the appeal, having failed to file the record of appeal or take any steps to advance the matter for over three years. The court rejected the appellant's argument regarding improper service, noting that the appellant and his current...
Source-derived case information.
- Citation
- [2024] KEHC 10942 (KLR)
- Parties
- Appellant: Alex Taabu Syeunda; Respondent: Desterio Okumu Odimah
- Court
- High Court
- Court Station
- High Court at Busia
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E002 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Motion to Set Aside Dismissal and for Stay of Execution
- Outcome
- application dismissed with costs to the respondent
- Judges
- WM Musyoka
- Legal Topics
- Appeal Dismissal, Stay of Execution, Setting Aside Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Alex Taabu Syeunda
Appellant
Desterio Okumu Odimah
Respondent
Procedural Posture
Civil Appeal / Ruling on Motion to Set Aside Dismissal and for Stay of Execution
Legal Issues
- 1 Whether the appellant was denied a fair hearing due to alleged improper service of court notices.
- 2 Whether the dismissal of the appeal for want of prosecution should be set aside.
- 3 Whether the appellant is entitled to stay of execution of the trial court's judgment and orders.
Ratio Decidendi
The court found that the appellant had demonstrated no interest in prosecuting the appeal, having failed to file the record of appeal or take any steps to advance the matter for over three years. The court rejected the appellant's argument regarding improper service, noting that the appellant and his current advocates had not taken any proactive measures since their appointment to move the appeal forward. The responsibility to prosecute the appeal lay with the appellant and his advocates, not the court or the respondent. Consequently, the application to set aside the dismissal and for stay of execution was dismissed for lack of merit.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 14th March 2024 is dismissed.
- The respondent shall have the costs of the application.
Full Case Text
Judgment text and source record
22 paragraphs
Syeunda v Odimah (Civil Appeal E002 of 2021) [2024] KEHC 10942 (KLR) (20 September 2024) (Ruling)
Neutral citation: [2024] KEHC 10942 (KLR)
Republic of Kenya
In the High Court at Busia
Civil Appeal E002 of 2021
WM Musyoka, J
September 20, 2024
Between
Alex Taabu Syeunda
Appellant
and
Desterio Okumu Odimah
Respondent
(an appeal arising from the decision of Hon. WK Chepseba, Chief Magistrate, CM, in Busia CMCCC No. 69 of 2014, of 19th November 2019)
Ruling
1. The appeal herein was initiated on 14th January 2021, when a memorandum of appeal, dated 12th January 2021, was filed.
2. An application, dated 20th October 2021, was filed herein on 20th October 2021, seeking review of orders that had been filed by the trial court, stay of execution of the decree of the trial court, and deposit of a title deed in court. The application was placed before the Judge on 11th November 2021, under certificate of urgency, and directions, relating to service, were given. It was responded to, and it came up several times, that is to say on 22nd November 2021, 7th February 2022, 6th June 2022, 3rd October 2022, 5th December 2022, 13th March 2023, 15th May 2023, 10th July 2023, 18th September 2023, 16th October 2023, and on 5th February 2024, when the appeal was eventually dismissed, for having been abandoned. .
3. What I am being called upon to determine is a Motion, dated 14th March 2024. It seeks stay of execution of the orders made on 5th February 2024, and consequential orders, stay of execution of the judgement of the trial court and the setting aside of the ex parte orders of 5th February 2024. The appellant complains that the said orders of 5th February 2024 were made in his absence, as he nor his Advocate was aware of the mention date slated for that day, and that notices were being served on the firm of Mwamu & Company, instead of Were & Company, the Advocates on record for him. It is pointed out that Were & Company, Advocates, came on record on 5th September 2022, when a notice of appointment was filed.
4. This is a matter where the appellant has had no appetite to prosecute. The memorandum of appeal was filed on 14th January 2021, and as at 5th February 2024, some 3 years later, no record of appeal had been filed. As no record of appeal had been lodged by then, directions had not been taken, on the disposal of the appeal. From the record before me, it would appear that it was the respondent who took the matter more seriously, by way of attending court, whenever the matter came up, in the absence of the appellant.
5. I am surprised that the appellant now complains that action was being taken without his knowledge, yet this was his appeal. He should have been driving it. The fact that there have been so many court attendances, when he did not appear, either personally or through his Advocate, would mean that he has never had any interest in the matter. He filed the appeal, and thereafter went to sleep, only to wake up after the appeal was dismissed. The court registry is not a parking lot for dead appeals, and it is not the business of the court to keep appeals alive for parties who are not interested in them.
6. I find no merit at all in the application, dated 14th March 2024, for no explanations have been given as to why the appellant has not taken any steps to advance his appeal. He complains of notices being served on his former Advocates, instead of on his current Advocates. That may be so, but what steps did his said current Advocates take since their appointment, on 5th September 2022, to advance the appeal? Why did the said Advocates have to wait for notices to issue to them, instead of being the ones to cause the notices to issue? The appeal was by the appellant, the initiative to move the appeal should have come from him, or his appointed agents. It seems ridiculous, to me, that the appellant and his Advocates are now looking for someone to blame for their failure, instead of themselves. The application is dismissed. Let the respondent have the costs.
DELIVERED VIA EMAIL, DATED AND SIGNED IN CHAMBERS, AT BUSIA, THIS 20THDAY OF SEPTEMBER 2024W MUSYOKAJUDGEMr. Arthur Etyang, Court Assistant.AdvocatesMr. Were, instructed by Were & Company, Advocates for the appellant.Mr. Bogonko, instructed by Bogonko Otanga & Company, Advocates for the respondent.