[2013] KEHC 4793 (KLR)
The court found that there had been an inordinate and undue delay of ten years in prosecuting the appeal, which was not justifiable. However, the court exercised its discretion not to dismiss the appeal outright, considering that dismissing it would not serve much purpose and that the respondent had already been...
Source-derived case information.
- Citation
- [2013] KEHC 4793 (KLR)
- Parties
- Appellant: UNI PLASTICS LTD.; Respondent: VIGITA MUBUA MULI
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 237 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed with no order as to costs; strict conditions imposed for prosecution of appeal
- Judges
- DA Onyancha
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
UNI PLASTICS LTD.
Appellant
VIGITA MUBUA MULI
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inordinate delay.
- 2 Whether the delay in prosecuting the appeal was undue and inordinate.
- 3 What conditions, if any, should be imposed if the appeal is not dismissed.
Ratio Decidendi
The court found that there had been an inordinate and undue delay of ten years in prosecuting the appeal, which was not justifiable. However, the court exercised its discretion not to dismiss the appeal outright, considering that dismissing it would not serve much purpose and that the respondent had already been deprived of the judgment sum. Instead, the court imposed strict conditions for the prosecution of the appeal, including fixing a date for directions, requiring the lower court record to be brought up, and setting a four-month deadline for prosecution, failing which the appeal would stand dismissed automatically. The application to dismiss the appeal was therefore dismissed, but...
Court Disposition
application dismissed with no order as to costs; strict conditions imposed for prosecution of appeal
Orders
- This appeal is fixed for directions on 12th day of April 2013.
- The Deputy Registrar shall call for the lower court’s original record to reach this court before 9th day of April 2013.
Full Case Text
Judgment text and source record
25 paragraphs
REPUBLIC OF KENYA
High Court at Nairobi (Nairobi Law Courts)
Civil Appeal 237 of 2003
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UNI PLASTICS LTD. .......................................... APPELLANT
VERSUS
VIGITA MUBUA MULI. ................................... RESPONDENT
R U L I N G
The application before the court is a Notice of Motion dated 25th May, 2012. It was filed by the Respondent against the Appellant and seeks dismissal of the appeal for want of prosecution. The application is opposed.
The appeal arose from a money decree the sum of which was deposited in an interest-earning account out of a judgment delivered by the lower court, way back on 17th April 2003, in RMCC No 10672 of 1999. A record of Appeal was filed in court on 20th July, 2010. No directions have been taken. The lower court record had not been brought although it was called for on 7th August, 2006.
There is no doubt that there has been long delay in attempting to bring the appeal to a hearing and it would be futile for the Appellant to claim that the delay was not undue and inordinate. Ten years is not a short time.
However, little will be achieved by dismissing the appeal although the Respondent has indeed been prevented from enjoying her judgment sum. The court will, therefore, nevertheless show its displeasure by attaching conditions to the saving of this appeal.
ORDERS
1. This appeal is fixed for directions on 12th day of April 2013.
2. The Deputy Registrar shall call for the lower court’s original record to reach this court before 9th day of April 2013.
3. This appeal shall be prosecuted within 4 months i.e. on or before 30th July, 2013 in default of which, it shall automatically stand dismissed.
4. This application is hereby dismissed with no order as to costs.
Dated and delivered at Nairobi this 11th day of March, 2013.
..................................................
D A ONYANCHA
JUDGE