[2018] KEHC 509 (KLR)
The court found that although there was a significant delay in prosecuting the appeal, the appellant's counsel had taken reasonable steps to trace and reconstruct the court file and had sought directions once the file was found. The delay was attributed to circumstances beyond the appellant's control, namely the...
Source-derived case information.
- Citation
- [2018] KEHC 509 (KLR)
- Parties
- Appellant: Vision Housing Co-operative Limited; Respondent: Wairimu Kinyanjui; Respondent: Mary Wambuku Kamau as Trustee of Ngei Kugeria
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 375 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
- Outcome
- Appeal not dismissed; appellant granted 90 days to prosecute the appeal, failing which it shall stand dismissed.
- Judges
- LM Njuguna
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Abatement, Delay in Prosecution, Substitution of Parties
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Vision Housing Co-operative Limited
Appellant
Wairimu Kinyanjui
Respondent
Mary Wambuku Kamau as Trustee of Ngei Kugeria
Respondent
Procedural Posture
Civil Appeal / Ruling on Notice to Show Cause for Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be dismissed for want of prosecution due to inaction since the last court appearance.
- 2 Whether the death of the first respondent and lack of substitution caused the appeal to abate in its entirety.
Ratio Decidendi
The court found that although there was a significant delay in prosecuting the appeal, the appellant's counsel had taken reasonable steps to trace and reconstruct the court file and had sought directions once the file was found. The delay was attributed to circumstances beyond the appellant's control, namely the unavailability of the court file and lack of cooperation from the previous advocate. The court also held that while the appeal had abated against the deceased first respondent, it remained alive against the second respondent. Therefore, it would be unjust to dismiss the entire appeal for want of prosecution. The court exercised its discretion to allow the appeal to remain on...
Court Disposition
Appeal not dismissed; appellant granted 90 days to prosecute the appeal, failing which it shall stand dismissed.
Orders
- The appeal shall be prosecuted within 90 days from the date of this ruling.
- If the appeal is not prosecuted within 90 days, it shall stand dismissed.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO.375 OF 2013
VISION HOUSING CO-OPERATIVE LIMITED.......APPELLANT
VERSUS
WAIRIMU KINYANJUI
MARY WAMBUKU KAMAU as Trustee of
NGEI KUGERIA.........................................................RESPONDENTS
RULING
The Appeal herein was filed on 5th day of July 2013. By a Notice of Motion dated 2nd April, 2014, the Appellant sought a stay of execution of the decree issued in CMCC No. 982 of 2008 pending the hearing and determination of the Appeal. That application was heard and a ruling delivered on the 11th day of March, 2015. Since then, no action was taken in the matter prompting the court to list the matter for notice to show cause why it should not be dismissed for want of prosecution.
When the matter came up in court on the 20th September 2018, both parties had filed their respective affidavits in response to the said notice.
In his replying affidavit, counsel for the Appellant deponed that he took over the matter in the month of May 2016 and filed a notice of change of advocates soon thereafter.
That, at the time of taking instructions, he was not handed over the original file by the previous advocate and on 20th September 2016, he wrote a letter to them seeking the release of the same. Thereafter, he made several attempts to trace the court file without success and on 11th October 2016, he wrote to the Deputy Registrar requesting that he be allowed to reconstruct the court file.
That, it was not until May 2018 when his court clerk informed him that the file had been traced and on the 17th May, 2018 he wrote to the Deputy Registrar requesting for a date for directions but todate he has never been informed whether the Appeal has been admitted or not to enable him prosecute the Appeal.
He averred that the Appellant is ready and willing to prosecute the Appeal and pray that the court should not dismiss the same.
On her part, counsel for respondent filed a replying affidavit on the 19th day of September 2018 in which she depones that since the matter was last in court on 11th March 2015, the Appellant has taken no other step to have the matter concluded.
She avers that the 1st Respondent who had been granted authority by the 2nd Respondent to plead on behalf of both, passed away on 15th August, 2015 and todate, he has not been substituted and in the premises, the suit has since abated.
The court has considered the two affidavits in response to the notice to show cause. Counsel for the Appellant contends that the delay in prosecuting the Appeal was caused by the delay in getting the file from the previous Advocate and also due to the disappearance of the court file. He has annexed a letter dated 20th September 2016 requesting for the file from the firm of Wanyoike & Macharia Advocates. I also see a letter dated 25th September 2016 to the firm of M.M Rungare & Co. Advocates informing them that they have taken over the matter and that the court file has been unavailable. They sought to know whether they have any objection to them requesting the court to allow them to reconstruct a skeleton file. There is also the letter dated 15th May 2018 to the Deputy Registrar, Civil Appeal section which was received on 17th May 2018 requesting for a date for directions.
Though counsel for the Respondents contend that the appellant has not taken steps to prosecute the Appeal, she has not denied having received the letter dated 26th September 2016. Counsel has also raised the issue of the death of the first Respondent and has contended that the Appeal has already abated. Whereas the Appeal has abated against the first Respondent, it is still alive as against the 2nd Respondent and therefore the court cannot dismiss it on that ground.
Looking at the affidavit by the counsel for the Appellant, it is clear that he was taking action in the Appeal in that on 15th May 2018 he had requested the Deputy Registrar to list the matter for directions.
In the circumstances, it would not be fair for the court to dismiss the Appeal but since it is an old matter, I do order that it be prosecuted within 90 days from the date of this ruling failing which it shall stand dismissed.
Dated, Signed and Delivered at Nairobi this 19th day of October, 2018
.......................
L. NJUGUNA
JUDGE
In the presence of:-
…………………………….. For the Plaintiff
……………………………… For the Defendant