[2017] KEHC 8832 (KLR)
The court found that the appellant had made efforts to obtain the necessary documents to prosecute the appeal, as evidenced by the application for proceedings and judgment. Although there was no follow-up, the initial step was deemed sufficient to show intent to prosecute. The respondent did not oppose the...
Source-derived case information.
- Citation
- [2017] KEHC 8832 (KLR)
- Parties
- Appellant: West Kenya Sugar Company Ltd; Respondent: Gabriel Okumu
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 62 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application allowed; dismissal order set aside; appeal reinstated with directions
- Judges
- AT Sitati
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Appeal Reinstatement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
West Kenya Sugar Company Ltd
Appellant
Gabriel Okumu
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the order dismissing the appeal for want of prosecution should be set aside.
- 2 Whether the appellant made sufficient efforts to obtain proceedings and judgment to prosecute the appeal.
- 3 Whether the appellant's right to be heard on appeal should be preserved.
Ratio Decidendi
The court found that the appellant had made efforts to obtain the necessary documents to prosecute the appeal, as evidenced by the application for proceedings and judgment. Although there was no follow-up, the initial step was deemed sufficient to show intent to prosecute. The respondent did not oppose the application. The court emphasized the appellant's constitutional right to be heard and determined that it would be unjust to deny the appellant the opportunity to pursue the appeal. Consequently, the order dismissing the appeal for want of prosecution was set aside, and directions were given for the expeditious prosecution of the appeal.
Court Disposition
application allowed; dismissal order set aside; appeal reinstated with directions
Orders
- The court's order made on 14.11.2016 dismissing the appeal for want of prosecution is set aside.
- The appellant shall, within thirty (30) days, compile, file and serve the record of appeal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KAKAMEGA
CIVIL DIVISION
CIVIL APPEAL NO. 62 OF 2012
BETWEEN
WEST KENYA SUGAR COMPANY LTD…..APPELLANT
AND
GABRIEL OKUMU……………………….…RESPONDENT
R U L I N G
1. The application coming up for determination is the Notice of Motion dated 06. 03. 2017 seeking among other orders, that the order of this court made on 14th November, 2016, dismissing this appeal for want of prosecution [be set aside] and also set aside any consequential orders thereto. The motion contains a raft of other prayers, though during the hearing of the application, counsel appearing only canvassed the prayer for setting aside. The position taken by counsel was, in my view, the right one because the motion was far too loaded with prayers, most of which needed to be canvassed vide separate applications.
2. The application is premised on grounds on the face thereof and is also supported by the affidavit of Elly Kefa Owinyi sworn on 06. 03. 2017. The affidavit reiterates the grounds in support of the application the main ground being that the applicant was incapacitated in its effort to timeously prosecute the appeal due to lack of copies of proceedings and judgment which took a long time in coming despite the same having been applied for.
3. There was no answer to the application despite counsel for the respondent having been duly served with the requisite hearing notice. The applicant has provided proof that application for copies of proceedings and judgement was made on 04. 01. 2013 and same received by the Resident Magistrate’s court Butali. Although there appears to have been no follow-up to that earlier application, I am satisfied that efforts were made by the applicant to obtain copies of proceedings and judgment.
4. It is also clear now that the applicant is desirous of pursuing its appeal. This is the applicant’s constitutional right which this court does not intend to take away. Accordingly, the application dated 06. 03. 2017 be and is hereby allowed in terms of prayer 3 thereof. I now order as follows;
1. This court’s order made on 14. 11. 2016 dismissing this appeal for want of prosecution be and is hereby set aside
2. The appellant shall, within thirty (30) days from now compile, file and serve the record of appeal.
3. The appellant shall, after due compliance with 2 above and within thirty (30) days of expiry of the period in 2 above set down the appeal for taking of directions.
4. Meantime, Deputy Registrar shall forthwith call for the file in SPMCC Butali Civil Case Number 129 of 2009 for purposes of assisting the applicant comply with 2 and 3 above.
5. In default of 2 and 3 above, and unless otherwise ordered by this court, the appeal shall stand dismissed for want of prosecution.
Orders accordingly,
Ruling delivered, dated and signed in open court at Kakamega this 24th day of May 2017
RUTH N. SITATI
JUDGE
In the presence of;-
………………Miss Otieno (present)……………...….…for Applicant/Appellant
…………N/A for Namasti & Co. Advo.…………….………for Respondent
…………Polycap……………………………………….……..Court Assistant