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High CourtAllowedAppeal dated 19th July 2018 (notice of motion dated 14th March 2019)
Otieno C.O. Ayao v Appellant (Appeal dismissed for want of prosecution)
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·~2 min to read original · ~4 min briefThe bottom line
#Failing to actively pursue your appeal in court can lead to its automatic dismissal due to excessive and inexcusable delay.
What this practically means
#Executive summary
#This was a notice of motion dated 14th March 2019, brought under Order 17 Rules (1), (2) and (3) of the Civil Procedure Rules, seeking dismissal of an appeal dated 19th July 2018 (filed 20th July 2018) for want of prosecution, with costs. The applicant, Otieno C.O. Ayao, swore a supporting affidavit deposing that the appellant had failed, neglected and never bothered to set the appeal down for hearing since filing, that the statutory period had elapsed, and that the appellant and the 1st defendant had since assessed the bill of costs at the lower court, abandoning any intention to proceed with the appeal. No replying affidavit was filed. The respondent only orally submitted that there had been a change of advocates in 2019 and a delay in typing the proceedings. Matheka J, sitting at Kakamega, perused the court file, found the appeal had lain dormant from July 2018 to March 2019, and held there was inordinate delay in prosecuting the appeal and that the reasons advanced were unacceptable. The court applied Utalii Transport Company Ltd & 3 Others v NIC Bank & Another (2014) eKLR on the primary duty of the party who initiated proceedings to progress the case, and Ivita v Kyumbu (1984) KLR 441, where Chesoni J framed the test as whether the delay is prolonged and inexcusable and whether justice will be done despite the delay. Finding the application meritorious, the court dismissed the appeal for want of prosecution and awarded costs of the application to the applicants. Judgment delivered, dated and signed at Kakamega on 5th November 2019.
Key legal issues
#01
Dismissal of appeal for want of prosecution
Holding
Application allowed; appeal dismissed for inordinate, inexcusable delay
Reasoning
The appeal was filed in July 2018 and by March 2019 had not been set down for hearing. The respondent gave no replying affidavit and the explanations (change of advocates, delay in typing proceedings) were unacceptable. Applying Utalii Transport and Ivita v Kyumbu, the delay was prolonged and inexcusable and justice favoured dismissal.
p. 2
Legal principles established
#- It is the primary duty of the party who set the proceedings in motion to take steps to progress their case
- The test for dismissal for want of prosecution is whether the delay is prolonged and inexcusable and whether justice will be done despite the delay
Court orders
#- 1.Appeal dated 19th July 2018 dismissed for want of prosecution
- 2.Costs of the application granted to the applicants
- On appeal from
- Lower court (magistrates' court)
- null
- Jurisdiction invoked
- Order 17 Rule (1), (2) & (3) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Otieno C.O. Ayao v Appellant (Appeal dismissed for want of prosecution)", Case Analysis (2019). Appeal dated 19th July 2018 (notice of motion dated 14th March 2019). Source:
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.