[2010] KEHC 38 (KLR)
The court found that the appellant had not been diligent in prosecuting the appeal, as there was no explanation for the failure to fix a hearing date throughout 2009 and only minimal action was taken in July 2010. However, recognizing the appellant's recent efforts, the court exercised its discretion to grant a...
Source-derived case information.
- Citation
- [2010] KEHC 38 (KLR)
- Parties
- Appellant: Zakhem Construction Ltd; Respondent: Gideon Lulu Mbukuku
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 173 of 2006
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Conditional extension granted; appeal to be fixed for hearing within 30 days or stand dismissed.
- Legal Topics
- Dismissal for Want of Prosecution, Appeal Management, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakhem Construction Ltd
Appellant
Gideon Lulu Mbukuku
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 in setting the appeal down for hearing.
- 2 Whether the appellant has provided sufficient explanation for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that the appellant had not been diligent in prosecuting the appeal, as there was no explanation for the failure to fix a hearing date throughout 2009 and only minimal action was taken in July 2010. However, recognizing the appellant's recent efforts, the court exercised its discretion to grant a final opportunity, ordering the appellant to fix the appeal for hearing within 30 days. Failure to comply would result in automatic dismissal of the appeal. The costs of the application were awarded to the respondent.
Court Disposition
Conditional extension granted; appeal to be fixed for hearing within 30 days or stand dismissed.
Orders
- The appellant shall fix the appeal for hearing within 30 days from the date of this ruling, failing which the appeal stands dismissed.
- The appellant/respondent shall bear the costs of this application.
Full Case Text
Judgment text and source record
17 paragraphs
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 173 OF 2006
(Appeal from the judgment of the Naivasha Magistrate – NJAGI (Ag.PM) and delivered on 31st October 2006 in Naivasha SPMCC No.190 of 2005)
ZAKHEM CONSTRUCTION LTD…………………APPELLANT
VERSUS
GIDEON LULU MBUKUKU……………………...RESPONDENT
RULING
This appeal was admitted to hearing on 26/1/09. The Memorandum of Appeal had been filed way back on 23/11/06 when the appellant challenged the judgment of the lower court in Naivasha CMC No. 190/2005. The respondent contends that despite request that the appeal be fixed for hearing, the same has never been set down for hearing and that is why the applicant/respondent filed the Chamber Summons application dated 30/11/2010, seeking to have the appeal dismissed for want of prosecution. The respondent has exhibited a letter dated 4/2/2009 and another dated 22/1/2010 reminding the appellant that they had not set the appeal down for hearing. In reply, counsel for the appellant Mr. Paul Wahome Kimani deponed that they have taken steps towards prosecution of the appeal when they wrote the letter dated 7/7/2010 to Omwoyo Advocates inviting them to take dates at the registry. When the clerk went to the registry on 16/7/2010, he found that the dairy for 2010 was closed.
I do agree with the respondent’s counsel that since 29/1/2009 the appellant has not been keen to have this appeal prosecuted. The counsel who swore the affidavit does not disclose why the year 2009 went by without them fixing a hearing date. They waited till July 2010 to seek a hearing date. Since the appellant has suddenly been awakened from his deep slumber, I will allow them 30 days within which to fix this appeal for hearing, failing which it stands dismissed. The appellant/respondent will bear the costs of this application.
DATED and DELIVERED this 25th day of March 2010.
R.P.V. WENDOH
JUDGE
PRESENT:
Ms Momanyi holding brief for Mr. Masese for the appellant.
Mr. Ombati holding brief for Mr. Wainaina for the respondent.
Kennedy – Court Clerk.