[2024] KEHC 7660 (KLR)
The court found that the appellant had satisfactorily explained the delay in filing the record of appeal, which had since been filed. As a result, the application to dismiss the appeal for want of prosecution was overtaken by events. The court concluded that there was no basis to grant the orders sought by the 1st...
Source-derived case information.
- Citation
- [2024] KEHC 7660 (KLR)
- Parties
- Appellant: Zohaib Trading Limited; Respondent: Chrispine Owino Owegi; Respondent: Steven Odhiambo; Respondent: Jeff Omondi
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E029 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application to Dismiss Appeal for Want of Prosecution
- Outcome
- application dismissed
- Judges
- KW Kiarie
- Legal Topics
- Dismissal for Want of Prosecution, Record of Appeal Filing, Delay in Prosecution, Costs of Application
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Zohaib Trading Limited
Appellant
Chrispine Owino Owegi
Respondent
Steven Odhiambo
Respondent
Jeff Omondi
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 delay in filing the record of appeal.
- 2 Whether the appellant has satisfactorily explained the delay in prosecuting the appeal.
- 3 Whether the costs of the application should abide the outcome of the appeal.
Ratio Decidendi
The court found that the appellant had satisfactorily explained the delay in filing the record of appeal, which had since been filed. As a result, the application to dismiss the appeal for want of prosecution was overtaken by events. The court concluded that there was no basis to grant the orders sought by the 1st respondent and dismissed the application. The court further ordered that the costs of the application would abide the outcome of the substantive appeal, thus not penalizing either party at this interlocutory stage.
Court Disposition
application dismissed
Orders
- The application dated 8th February 2024 is dismissed.
- Costs of the application to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
25 paragraphs
Zohaib Trading Limited v Owegi & 2 others (Civil Appeal E029 of 2023) [2024] KEHC 7660 (KLR) (27 June 2024) (Ruling)
Neutral citation: [2024] KEHC 7660 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal E029 of 2023
KW Kiarie, J
June 27, 2024
Between
Zohaib Trading Limited
Appellant
and
Chrispine Owino Owegi
1st Respondent
Steven Odhiambo
2nd Respondent
Jeff Omondi
3rd Respondent
Ruling
1. The 1st respondent moved the court through a Notice of Motion dated the 8th day of February 2024 under sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 35 (2) and Order 51 Rule of the Civil Procedure Rules and Article 159 (2) (d) of the Constitution of Kenya. She is seeking the following orders:a.That the appeal herein be and is hereby dismissed by want of prosecution.b.That the Appellant bear the costs of this application.
2. The application was premised on the following grounds:a.By an Order given on 27th June 2023, this Honourable Court granted the Appellant leave to file its Record of Appeal.b.The Appellant has failed to prosecute its Appeal since 2023. c.The Appellant has also not demonstrated effort to prosecute the Appeal by requesting typed proceedings, typed ruling, or court order.d.The appellant has also not filed a Record of Appeal since.e.The Appellant continues to unduly enjoy orders of stay of execution, delaying the progress of the matter, which could have been proceeding by now.f.The 1st Respondent stands prejudiced as his claim in the lower Court remains unprosecuted at the behest of the Appellant herein.g.The law under Order Rule 35(2) of the Civil Procedure Rules empowers this Honourable Court to dismiss an Appeal for want of prosecution.h.It is hereby in the interest of justice that the application be allowed as prayed.
3. The appellant opposed the applications and stated:a.The appellant cannot be blamed for the delay.b.That the application lacks merit.
4. Order Rule 35(2) of the Civil Procedure Rules provides:Where the agreement is for the delivery of any property, or for the doing or the refraining from doing, any particular act, the estimated value of the property to be delivered, or to which the specified act has reference, shall be stated in the agreement.
5. The first respondent, therefore, cited in applicable law.
6. The appellant has satisfactorily explained the cause of the delay in filing the record of appeal, which has since been filed. The application has, therefore, been overtaken. The application is dismissed, and the costs will abide by the outcome of the appeal.
DELIVERED AND SIGNED AT HOMA BAY THIS 27TH DAY OF JUNE 2024. KIARIE WAWERU KIARIEJUDGE