Anna Wanjala v Mary K. Muthoni [2017] KEHC 2683 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

ENVIRONMENT AND LAND COURT.

HC. CIVIL APPEAL CASE NO. 52 OF 2013.

ANNA WANJALA…………………………………..APPELLANT

VERSUS.

MARY K. MUTHONI…………………………......RESPONDENT

RULING.

[1].   The application herein is made under Section 3 3A and 63(e) and 89 and order 42 rule 35(2) of the Civil Procedure rules 2010.  It prays for an order that the appeal herein be dismissed for failure to comply with the court order of 27/10/2015.

[2].   The application is based on the ground that this Appeal was filed on 25/9/2013.  That on 27/10/2015 this court ordered the Appellant to move with haste to have the Appeal heard.  That it is 1½ years since that order was made and that the appeal remains prejudicial to the Respondent as the same affects Bungoma CMCC No. 501 of 2011.  Which was kept in abeyance pending this Appeal.  That the Applicant has not come to court to fix the Appeal for hearing and it has been four (4) years since the appeal was filed.

[3].   The respondent says that they were unable to move the court since they did not have a record of Appeal and proceedings from the Lower Court and that only a Memorandum of Appeal had been filed on 24/9/2013.  They stated that they applied for proceedings in 2016.  They argued that the appeal is merited.

[4].   Judgment herein was handed down on 24th September, 2013 in CMCC No.501 of 2011.  A memorandum of Appeal was filed on 25/9/2013.  There was no application of proceedings until 13th January 2016.  Earlier on, on 27th October, 2015 the court had ordered the appellant to move with haste to have her appeal admitted to early hearing.  Since that order was made no action was done until 30th January, 2016 when a letter was written requesting for proceedings and Judgment.  This was a period 2½ months since the order of 27th October, 2015 and a period of four (4) years since the appeal was filed.  That delay is inordinate.  It is quite apparent that appellant is not interested in this appeal at all.  The appeal has blocked the progress of Bungoma CMCC No. 501 of 2011 which was kept in abeyance pending the hearing of this appeal.  Such situation cannot be sustained.  The appellant has ignored the warning of the court that he should fix his case with haste.  This appeal must be dismissed and I hereby do so with costs to the respondent.

It is so ordered.

Dated at Bungoma this  11th  day of  October,  2017.

S. MUKUNYA

JUDGE.