Coast Bus Safaris, Coastline Safari & Coast Bus (Mombasa) Limited v Willis Omusinde Omboyo (Suing as the Legal Representative of the Estate of the late Hezron Ochieng Omboyo (Deceased) [2019] KEHC 7136 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MOMBASA

CIVIL APPEAL NO.77 OF 2013

COAST BUS SAFARIS....................................................1ST APPELLANT

COASTLINE SAFARI....................................................2ND APPELLANT

COAST BUS (MOMBASA) LIMITED.........................3RD APPELLANT

VERSUS

WILLIS OMUSINDE OMBOYO

(Suing as the Legal Representative

of the Estate of the late HEZRON

OCHIENG OMBOYO(DECEASED)...........................RESPONDENT

RULING

This matter was coming up for mention to confirm the directions of Justice Njoki on 28th day of November, 2018 to the effect that the respondents file and serve the recorded appeal within 60 days, and thereafter the appeal for directions  before a Judge within 15 days of this . Failing to comply with these the directions the Judge directed that the Applicant be at liberty to move the Registrar  to place the file before  a Judge for dismissal of the appeal for want of prosecution.

It is now almost four months since directions were given and the appeal has not been set down for directions as directed by Hon. Justice Njoki.

The Applicants counsel has then prayed that the appeal be dismissed for want of prosecution since the appellant has failed to comply with the directions of 28th November, 2018.

Mr Kagram, holding brief for the appellants counsel explained that the reason that the appellants haven not complied with the directions is because they had yet to be furnished with the typed recorded proceedings .He prayed that they be given a further 21 days to file and serve the said record of appeal since they had information that the proceedings were now ready.

This was opposed by the respondents counsel on the ground that substantive justice applies to both sides and that the Respondents were being denied chance to enjoy the fruits of their judgment.

I have considered the arguments by both counsels with regard to whether the appeal should be dismissed for want of prosecution. It is true that the record of appeal is yet to be filed and served. It is also true that the appeal has not been listed for directions.

However, from the explanation given by the appellant’s counsel, where they have indicated that the proceedings are now ready, they are allowed one more chance to have this appeal set down for directions.

The appellants are therefore granted 21 days to file and server the record of appeal. Failure to comply with the directions will render the appeal dismissed for want of prosecution.

Mention on 3. 6.2019 to confirm.

(a) Filing and service of recorded appeal

(b) For the directions

Ruling signed and dated this 9th day of May, 2019.

LADY JUSTICE D. O.CHEPKWONY

Ruling delivered and dated this 13th day of May, 2019

JUSTICE P. J.OTIENO

In the presence of;

Mr Kuhere for the Respondents

Miss Mutune  for  Ogunde for Appellants

C/clerk- Bancy