[2015] KEHC 4432 (KLR)
The court found that the appellant had failed to take any meaningful step to prosecute her appeal for over seven years after obtaining a stay of execution in the subordinate court. The explanation provided by the appellant, blaming her former advocates and claiming ignorance of the law, was found unpersuasive. The...
Source-derived case information.
- Citation
- [2015] KEHC 4432 (KLR)
- Parties
- Appellant: Ziporah Muthoni Njagi; Respondent: Faith Wairimu Gitubu
- Court
- High Court
- Court Station
- High Court at Kerugoya
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 236 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- Appeal dismissed for want of prosecution with costs.
- Judges
- BB Limo
- Legal Topics
- Dismissal for Want of Prosecution, Delay in Prosecution, Interim Orders, Appeal Process, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ziporah Muthoni Njagi
Appellant
Faith Wairimu Gitubu
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 interim orders staying execution in the subordinate court should be lifted.
- 3 Whether failure to cite the specific rule or section under the Civil Procedure Rules renders the application defective.
Ratio Decidendi
The court found that the appellant had failed to take any meaningful step to prosecute her appeal for over seven years after obtaining a stay of execution in the subordinate court. The explanation provided by the appellant, blaming her former advocates and claiming ignorance of the law, was found unpersuasive. The court held that ignorance of the law does not excuse indolence and that litigants must be diligent in prosecuting their cases. The application to dismiss the appeal was found to be proper and merited, even though the applicant did not cite the specific legal provision, as the court is empowered under Sections 1A and 3A of the Civil Procedure Act and Order 42 rule 35(2) of the...
Court Disposition
Appeal dismissed for want of prosecution with costs.
Orders
- The application dated 14th March, 2014 is allowed.
- The appeal is dismissed for want of prosecution with costs to the respondent.
Full Case Text
Judgment text and source record
31 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
CIVIL APPEAL CASE NO. 236 OF 2013
ZIPORAH MUTHONI NJAGI……………………………………APPELLANT
AND
FAITH WAIRIMU GITUBU…….…………………..……….….RESPONDENT
RULING
The Motion before me is dated 14th March, 2014. FAITH WAIRIMU GITUBA, the applicant herein has moved this Court to dismiss the appeal herein for want of prosecution and lift the interim orders issued in the civil case at the subordinate court which is the subject of this appeal.
The Applicant listed four (4) grounds in her application as:
That the respondent/appellant has not taken any step in her appeal since 2007.
That there are interim orders which have stayed execution inKERUGOYA SENIOR RESIDENT MAGISTRATE’S COURT CIVIL CASE NO. 101 OF 2007.
That the appellant has not prepared the record of appeal.
That it is mete and just to allow this application.
In her supporting affidavit sworn on 14th March, 2014, the Applicant has deponed that the Appellant appeared to have lost interest in her appeal as no action has been taken since 2007 when the appeal was filed. She further alleged that the Appellant has taken undue advantage after staying decree in the subordinate court pending this appeal and that she is benefiting from the attendant delay.
The Respondent opposed the application through E. M. Mutahi Advocate, who relied on the replying affidavit sworn by the Appellant/Respondent on 28th May, 2015.
The Respondent deponed that she instructed her erstwhile Advocates, Ngigi Gichoya Advocate to file the appeal on her behalf and she gave him the mandate to follow up the appeal on her behalf. She also added that she was not informed by her former counsel about the status of her appeal and only realized of the current state when she was served with the application to have her appeal dismissed for want of prosecution.
The Respondent also opposed the application citing that the application is defective as it does not disclose the section or the rule under which it is made under the Civil Procedure Rules. The Respondent further deponed that the Applicant should have moved the Court herself to have the appeal heard adding that she was ignorant herself about the law and what steps she was required to take to make her appeal heard.
I have considered the application which was argued by the Applicant in person. I have considered the response made on behalf of the Respondent/Appellant by Mutahi Advocate. I have looked at the proceedings and have noted that the Appellant filed her appeal on 31st July, 2007 against a decision of the trial magistrate delivered on 10th July, 2007. The Respondent obtained a stay of execution of decree in the lower court on 14th April, 2008 and from that time she appears to have gone to sleep as no step was ever taken from that time henceforth to either have the appeal admitted or even apply and pay for court proceedings.
Mr. Mutahi, counsel for the Appellant told this Court that he was now ready to apply for the proceedings and pay for the same in order to move this Court to admit the appeal. The counsel for the Appellant could not however, explain why it has taken her more than 7 years to take any step in prosecuting her appeal. She appears to blame her erstwhile counsel for her inaction but the affidavit filed by her former counsel after being served with the application to have the appeal dismissed, shows that it is the Appellant herself who had failed to go and see her advocates. I am not persuaded that she was ignorant of what the law required of her. Ignorance of law is no excuse for indolence. I do find that the Applicant though has not cited any provision of law in her application, she is within her rights to move this court in view of the inordinate delay exhibited by the Appellant in prosecuting her appeal. In the light of Sections 1Aand 3A of the Civil Procedure Act in addition to Order 42 rule 35 (2) of the Civil Procedure Rules, the application before me is proper and indeed merited in the circumstances. I do not find any tangible reason advanced by the Appellant/Respondent why she has not taken any step whatsoever in her appeal for more than 7 years after filing it.
Consequently I have to allow the application dated 14th March, 2014 as prayed. The appeal herein is dismissed with costs for want of prosecution.
Dated and delivered at Kerugoya this 19th day of June, 2015.
R. K. LIMO
JUDGE
19. 6.2015
Before: Hon. Justice R. Limo
Court Assistant Willy
Faith Wairimu present
Ruling signed, dated and delivered in the presence of Faith Wairimu and in the absence of Siporah Njagi.
R. K. LIMO
JUDGE
19. 6.2015