[2011] KEHC 2297 (KLR)
The court found that the appellant had made demonstrable efforts to prosecute the appeal by repeatedly requesting the lower court proceedings and judgment, which are necessary for preparing the record of appeal. The delay in prosecution was not due to the appellant's inaction but rather the lack of response from the...
Source-derived case information.
- Citation
- [2011] KEHC 2297 (KLR)
- Parties
- Appellant: Vincent Orutwa Barake; Respondent: Timsales Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 69 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
- Outcome
- Appeal not dismissed; directions issued for expediting proceedings and preparation of record of appeal.
- Judges
- RPV Wendoh
- Legal Topics
- Dismissal for Want of Prosecution, Record of Appeal Preparation, Court Proceedings Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vincent Orutwa Barake
Appellant
Timsales Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to delay in taking steps to prosecute the appeal.
- 2 Whether the appellant has demonstrated sufficient effort to obtain proceedings and prepare the record of appeal.
Ratio Decidendi
The court found that the appellant had made demonstrable efforts to prosecute the appeal by repeatedly requesting the lower court proceedings and judgment, which are necessary for preparing the record of appeal. The delay in prosecution was not due to the appellant's inaction but rather the lack of response from the court in supplying the required documents. Therefore, the court exercised its discretion not to dismiss the appeal for want of prosecution. Instead, the court directed the Deputy Registrar to expedite the typing of proceedings and ordered the appellant to prepare, admit, and fix the record of appeal for hearing within six months.
Court Disposition
Appeal not dismissed; directions issued for expediting proceedings and preparation of record of appeal.
Orders
- The Deputy Registrar, Nakuru High Court, is directed to expedite the typing of proceedings to enable the appellant to prepare the record of appeal.
- The appellant is to prepare, admit, and fix the record of appeal for hearing within the next six months.
Full Case Text
Judgment text and source record
16 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 69 OF 2009
VINCENT ORUTWA BARAKE……………………….APPLICANT
VERSUS
TIMSALES LIMITED……………………………..RESPONDENT
RULING
The appeal was filed on 23rd April 2009 and 27th April 2011 the court took out a Notice to the Appellant to show cause why no steps have been taken towards prosecution of the appeal. Mr. Gekong’a has filed an affidavit in reply in which he contends that he has taken steps towards prosecution of the appeal by writing to the Executive Officer, Nakuru, requesting for proceedings of the Lower Court to enable him prepare the record of appeal but so far, there has been no response.
The counsel exhibited the letters dated 3rd September 2009, 15th April 2010 and the most recent one dated 8th February 2011 in which the counsel sought to be supplied with proceedings and judgment to enable them prepare the record of appeal. I am satisfied that some effort has been made in trying to have the appeal prosecuted and now the court directs that the Appellant do brace for the said proceedings and judgment, prepare for the record of appeal. The Deputy Registrar, Nakuru High Court is directed to expedite the typing of proceedings to enable the appellant prepare the record of appeal, have it admitted and fixed for hearing within the next 6 months.
DATED and DELIVERED this 17th day of May, 2011.
R. P. V. WENDOH
JUDGE
PRESENT:
Mr. Moseti for Appellant
No appearance for Respondent
Kennedy – Court Clerk