[2009] KEHC 951 (KLR)
The court found that the appellants had failed to take any meaningful steps to prosecute the appeal for over three and a half years since the filing of the supplementary record. The court held that the reasons advanced by the appellants, including lack of service of the notice of change of advocates and...
Source-derived case information.
- Citation
- [2009] KEHC 951 (KLR)
- Parties
- Appellant: Sylvester Khaemba Kwanusu; Appellant: Macheso Kwanusu; Respondent: Khaemba Chimakile; Respondent: Nyongesa Khaemba
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 4 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application for Dismissal for Want of Prosecution
- Outcome
- appeal dismissed for want of prosecution
- Judges
- FN Muchemi
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Delay, Supplementary Record, Party Misdescription
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sylvester Khaemba Kwanusu
Appellant
Macheso Kwanusu
Appellant
Khaemba Chimakile
Respondent
Nyongesa Khaemba
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 prolonged inaction by the appellants.
- 2 Whether the defect in the appeal record regarding party names was sufficiently rectified by the supplementary record.
Ratio Decidendi
The court found that the appellants had failed to take any meaningful steps to prosecute the appeal for over three and a half years since the filing of the supplementary record. The court held that the reasons advanced by the appellants, including lack of service of the notice of change of advocates and unavailability of hearing dates, were not convincing or sufficient to justify the delay. The court noted that the defect in the appeal record had been rectified by the supplementary record, but the appellants' continued inaction demonstrated a lack of interest in pursuing the appeal. Invoking Order XLI Rule 31(2) of the Civil Procedure Rules, the court exercised its discretion to dismiss...
Court Disposition
appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution under Order XLI Rule 31(2).
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT
AT BUNGOMA
Civil Appeal 4 of 1999
SYLVESTER KHAEMBA KWANUSU ::::::::::::::: 1ST APPELLANT
MACHESO KWANUSU ::::::::::::::: 2ND APPELLANT
~VRS~
KHAEMBA CHIMAKILE ::::::::::::::: 1ST RESPONDENT
NYONGESA KHAEMBA ::::::::::::::: 2ND RESPONDENT
RULING
Mr. Onyando applied orally for dismissal of the appeal for want of prosecution. The Appellant has not moved the court for ten years now. The second ground was that the appeal record has a mix-up of names where the Appellants are named as Respondents and vice verse. The appeal record is therefore defective.
Mr. Situma replied that the anomaly on the appeal record was rectified by filing a supplementary record with leave of the court.
The court record shows that the leave to file a supplementary record was granted by Justice Sergon on 7th March, 2005. The record was filed on 31st March, 2005. This sorted out the problem of mix-up of the names of the parties. A hearing date was fixed on 12th October, 2005 for 12th October, 2006. Both counsels appeared before the court. The appeal was stood over pending the counsel for the Respondent to file an application to withdraw from acting.
The application was not filed but a notice of change of advocates was filed on 11th October, 2005 bringing in M/s Onyando & Co. to appear for Respondents and allowing the exit of Wasilwa & Co.
Since that time, the Appellant has not moved the court to fix a hearing date . Mr. Situma says he was not served with the notice of change of advocates. I agree with the Respondent’s counsel that this is not an excuse for Mr. Situma and his client to fix a date for hearing of the appeal. The Appellants must show interest in their appeal or else they may suffer the consequences. This court closed the 2010 diary in July 2009. It is not a sound or convincing reason to say that there are no dates. Being an appeal filed in 1999, it is a very old one running to ten (10) years. No good explanation has been given as to why no action has been taken since the supplementary record was filed.
I agree with the Respondent that the reasons given by the Appellant are not convincing. Order XLI Rule 31 allows the court to dismiss an appeal for want of prosecution. The Respondent ought to move the court by way of summons which they have not done. The court may dismiss the appeal on its own motion.
I am satisfied that the Appellant has not made any attempts to prosecute his appeal for the last three and half (3 ½ ) years. I invoke Order XLI Rule 31 (2) and dismiss the appeal accordingly with costs to the Respondents.
F. N. MUCHEMI
JUDGE
Dated, Delivered and Signed at Bungoma
This 10th day of November, 2009 in the presence of:
Mr. Situma for the Applicant and Mr. Onyando for the Respondent.