Mary Wamabui Kibunya v Henry Mugethe Karanja, James Wamunyu Karanja & John Mburu Karanja [2013] KEHC 6783 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL DIVISION

CIVIL APPEAL NO. 178 OF 2007

MARY WAMABUI KIBUNYA .............................APPELLANT/RESPONDENT

VERSUS

HENRY MUGETHE KARANJA..........................1ST RESPONDENT/APPLICANT

JAMES WAMUNYU KARANJA.........................2ND RESPONDENT/APPLICANT

JOHN MBURU KARANJA…………………….………3RD RESPONDENT/APPLICANT

RULING

Before me is a chamber summons dated the 25/4/13 filed by the respondent/applicant. It is brought under order 42 rule 35(1) of the Civil Procedure Rules 2010. The applicant/respondent is seeking the following orders;

That the applicants appeal be dismissed for want of prosecution.

That costs of the application and the entire appeal be borne by the applicant/respondent.

The application is grounded on six grounds stated on the face of the application. It is also supported by the affidavit of Job Mwangi Thiga counsel for the respondent/applicant. He avers that the appeal in this matter was filed on the 15/5/07. On the 15/12/08 the appeal was slated for hearing but was stood over generally.

Thereafter the appeal has been fixed for hearing on the 7/7/2009, 24/11/09 and 21/9/10 but taken out for various reasons. That on the 6/12/10 the appellants counsel was allowed to withdraw but since then the appellant has not taken any steps to prosecute the appeal. That the appellant has slept on her nights and lost interest in the matter. That equity does not favour the indolent and litigation should not be allowed to continue ad infinitum

The appellant/respondent appeared in person. She filed a replying affidavit dated the 29/10/13. In it she explains why the appeal should not be dismissed. She avers that she was not told by her former  counsel that she was withdrawing as she was not served with the application, that all the hearing dates mentioned were served on her counsel all were done behind her back. That there is a suit at Eldoret High Court a succession cause and its findings shall have a bearing over this suit.

In reply Mr. Thiga stated that the Eldoret case has no bearing over    this case and that there is no stay in the matter nor in this case.

I have considered the parties arguments.  there is indeed an appeal pending. It is apparent that there has been some delay. The appellant from what is deponed in her replying affidavit and her presence in court shows she is desirous of having the appeal heard. She blames her former counsel from withdrawing from the matter without informing her.  I note that this is a land matter, land matters are emotive and in the interest of justice I will give the appellant a chance to prosecute her appeal. I therefore decline to grant the orders ought to dismiss the appeal for want of prosecution. Parties to be given a dated on priority basis at the registry as this is a fairly old matter. Costs shall be in the cause.

Dated, signed and delivered this 8th Day of November 2013.

R. E OUGO

JUDGE

In the presence of:-

……………………………………………………….…Respondent/Applicant

…………………………………………………….……Appellant/Respondent

……………………………………………….………………………Court Clerk