Kiogora & another v Mbura [2022] KEHC 14501 (KLR)

Kiogora & another v Mbura (Civil Appeal E060 of 2021) [2022] KEHC 14501 (KLR) (27 October 2022) (Ruling)

Neutral citation: [2022] KEHC 14501 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal E060 of 2021

TW Cherere, J

October 27, 2022

Between

Newton Kiogora

1st Appellant

Derrick Mutuma Kinyua

2nd Appellant

and

Kelvin Mwangi Mbura

Respondent

Ruling

1. This appeal was filed on May 5, 2021and to date it has not been prosecuted. By notice of motion dated May 25, 2022, Applicant seeks that the appeal be dismissed for want of prosecution. The application is based on ground on its face and on the supporting affidavit sworn on May 25, 2022by Joel Mutuma, advocate for the applicant who avers mainly that the pendency of the appeal is denying Applicant the fruits of his judgment.

2. In his response vide a replying affidavit sworn on July 6, 2022, Lawrence Njuguna, advocate avers that the delay in compiling the record of appeal has been caused by the lower court’s failure to supply the same inspite of a request for proceedings, judgment and decree by a letter dated June 14, 2021.

3. I have considered the application in the light of the affidavits on record and annexures thereto.

4. Whereas there is evidence that the letter dated June 14, 2021requesting for proceedings, judgment and decree was received by Nkubu Court on June 21, 2021, more than a year later, it has not been demonstrated by respondents that a follow up to that letter has been made.

5. Clearly, the respondents have not been diligent. The foregoing notwithstanding, it should be the court’s last resort to deny a party a chance to be heard on merit.

6. Consequently, the call for dismissal of the appeal is disallowed with orders that Respondents file and serve the record of appeal not later than 30 days from today’s date.

7. Mention on 15th December, 2022 to confirm compliance with the abovementioned orders and for further orders

DATED AT MERU THIS 27TH DAY OF OCTOBER 2022WAMAE.T. CHEREREJUDGEAppearancesCourt Assistant - Morris KinotiFor Appellants/Respondents - Mr. Njuguna for Kimondo Gachoka & Co. AdvocatesFor Respondent/Applicant - Mr. Mutuma for Mutuma & Koskei Advocates