[2022] KEHC 10444 (KLR)
The court found that the appellant had failed to prosecute the appeal for almost two years and had not provided any lawful excuse for the delay. There was no evidence that the record of appeal had been prepared or filed. Although the court could not conclusively determine whether leave to appeal had been sought due...
Source-derived case information.
- Citation
- [2022] KEHC 10444 (KLR)
- Parties
- Appellant: Teresa Wanjiku Wangai; Respondent: Daniel Ndungu Murathe
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 34 of 2019
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application allowed; appeal dismissed for want of prosecution
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Leave to Appeal, Record of Appeal, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Teresa Wanjiku Wangai
Appellant
Daniel Ndungu Murathe
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 by the appellant.
- 2 Whether the appeal was instituted without leave of court as required by law.
Ratio Decidendi
The court found that the appellant had failed to prosecute the appeal for almost two years and had not provided any lawful excuse for the delay. There was no evidence that the record of appeal had been prepared or filed. Although the court could not conclusively determine whether leave to appeal had been sought due to lack of access to the trial court record, the inordinate delay alone justified dismissal of the appeal for want of prosecution. The application to dismiss the appeal was therefore meritorious and allowed with costs to the applicant.
Court Disposition
application allowed; appeal dismissed for want of prosecution
Orders
- The appeal is dismissed for want of prosecution.
- Costs awarded to the applicant.
Full Case Text
Judgment text and source record
22 paragraphs
Wangai v Murathe (Civil Appeal 34 of 2019) [2022] KEHC 10444 (KLR) (23 June 2022) (Ruling)
Neutral citation: [2022] KEHC 10444 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal 34 of 2019
HK Chemitei, J
June 23, 2022
Between
Teresa Wanjiku Wangai
Appellant
and
Daniel Ndungu Murathe
Respondent
Ruling
1. By his Notice of Motion dated 12th November 2020 the applicant prays that this appeal be dismissed for failing to comply with the requisite provisions of the law namely seeking leave before it was instituted and for want of prosecution.
2. The application is premised on the grounds thereof and the sworn affidavit of Kiongo P Murimi advocate for the applicant which was sworn on the same date.
3. The application is unopposed despite several times being adjourned for failure by the respondent to attend court.
4. The court has perused the same and is of the considered opinion that it is meritorious. The applicant has not for almost two years now prosecuted her appeal and there is no evidence of such. There is no evidence that the record of appeal has been prepared or at all.
5. On the issue of not complying with the provisions of Section 75 of the Civil Procedure Act and Order 43 Rule 1 of the Civil Procedure Rules, this court may not make a definite orders noting that it is not privy to the proceedings at the trial court. In other words, there may be a possibility that the applicant sought the leave of the court.
6. Nonetheless for the reason stated above the court finds the period taken by the applicant to process her appeal inordinately long without any lawful excuse.
7. The application is allowed with costs to the applicant.
DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 23RD JUNE 2022. H K CHEMITEI.JUDGE