[2014] KEHC 744 (KLR)
The court found that the appellant had failed to take any steps to prosecute the appeal for over two years after filing the Notice of Appeal and Memorandum of Appeal. The appellant did not prepare or serve the record of appeal, nor did he seek directions from the court. The absence of the appellant and his counsel...
Source-derived case information.
- Citation
- [2014] KEHC 744 (KLR)
- Parties
- Appellant: Timothy Otieno Owuor t/a Nairobi Connections Service Auctioneers; Respondent: Jared Osongo
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Case 444 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Lift Stay and Strike Out Appeal
- Outcome
- Application allowed; stay order lifted; Notice of Appeal and Memorandum of Appeal struck out; costs to respondent.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Appeal Dismissal, Stay of Execution, Abuse of Process
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Timothy Otieno Owuor t/a Nairobi Connections Service Auctioneers
Appellant
Jared Osongo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Lift Stay and Strike Out Appeal
Legal Issues
- 1 Whether the continued stay of execution should be lifted due to inaction by the appellant.
- 2 Whether the Notice of Appeal and Memorandum of Appeal should be struck out for want of prosecution.
Ratio Decidendi
The court found that the appellant had failed to take any steps to prosecute the appeal for over two years after filing the Notice of Appeal and Memorandum of Appeal. The appellant did not prepare or serve the record of appeal, nor did he seek directions from the court. The absence of the appellant and his counsel at the hearing, despite being served with a hearing notice, further demonstrated a lack of interest in pursuing the appeal. The court held that maintaining the stay of execution in these circumstances would cause injustice to the respondent and amount to an abuse of the court process. Consequently, the court lifted the stay order and struck out the Notice of Appeal and...
Court Disposition
Application allowed; stay order lifted; Notice of Appeal and Memorandum of Appeal struck out; costs to respondent.
Orders
- The stay order is lifted.
- The Notice of Appeal and Memorandum of Appeal are struck out.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL NO. 444 OF 2012
TIMOTHY OTIENO OWUOR T/A NAIROBI CONNECTIONS SERVICE AUCTIONEERS..APPELLANTS
VERSUS
JARED OSONGO ……………………...................................................…………………….. RESPODENT
RULING
The appellant herein was a subject of the Auctioneers Licensing Board which delivered a verdict on 25th July, 2012 imposing some penalties upon him. Aggrieved by the said decision he lodged an appeal against the said decision and also a stay of execution of the same. Following an application by way of Chamber Summons dated 14th September, 2012 Onyancha J. gave an order to stay execution of the decision of the auctioneers’ board on some specified conditions.
The record shows that the appellant lodged a Notice of Appeal on 15th August, 2012 and a Memorandum of Appeal dated 23rd August, 2012. Thereafter no record of appeal has been prepared or filed by the appellant to date. There is now before an application by way of Notice of Motion dated 17th October, 2013 seeking the lifting of the stay order and the sticking off of the Notice of Appeal and Memorandum of Appeal cited above.
The reasons set out are that ever since the filing of the Notice of Appeal no further action has been taken for a period of more than one year. The respondent wishes to benefit from the judgment obtained in his favour, and continues to suffer loss as a result of inaction on the part of the appellant. The continued stay of the order is an abuse of the court process.
It was incumbent upon the appellant to prepare the record of appeal, serve the respondent and move for the court for directions. This he has failed to do for a period of over two years now. It would appear that he is taking advantage of the stay order on record.
When this application came up for hearing on 13th November, 2014 the appellant was absent. The Hearing Notice filed in court shows that his counsel was served on 13th June, 2014. No explanation of their absence has been brought to the notice of the court.
In the circumstances, this appeal it cannot be sustained without causing injustice to the respondent. Accordingly, the stay order are hereby lifted and the Notice of Appeal and Memorandum of Appeal struck out as prayed. The respondent/ applicant shall have the costs of this application.
Orders accordingly.
Dated and delivered at Nairobi this 10th Day of December, 2014.
A.MBOGHOLI MSAGHA
JUDGE