Joseph Komoloi Longura v Kibiriti Lokira Lokorwa

the court. He contends that the respondent has slept on his rights and the court should not aid stale matters. 5. The applicant also insists that the respondent is denying him the fruits of his judgment with the appeal still pending, and should thus be dismissed. 6. In his affidavit sworn on the same date, the applicant has attached and marked as annexures copies of the application dated 14/1/2025 and the replying affidavit dated 3/9/2025 as KLL-1(a) and (b). 7. The respondent opposes the application vide a replying affidavit filed on 15/7/2026. He admits having delayed in prosecuting the appeal. However, the respondent contends that the delay was not intentional, deliberate, or due to a lack of interest in the appeal, but due to lack of proper communication with his erstwhile advocates, M/s Risper Arunga & Company Advocates. 8. He asserts that he was under the genuine belief that his then advocates were taking all the necessary steps to prosecute the appeal. According to the respondent, he has since instructed the firm of M/s Ndinyo & Company Advocates to take over the matter. RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 2

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9. The respondent contends that his present advocates are to urgently compile, prepare and file the Record of Appeal together with all the requisite documents for hearing on its merits. 10. Further, the respondent contends that the applicant will not suffer any prejudice that an award of costs cannot compensate. 11. According to the respondent, he stands to suffer grave prejudice as he shall be denied the constitutional and statutory right to ventilate his appeal on its merits, notwithstanding that the delay was occasioned by the inadvertence and omission by his erstwhile advocates. On this point, the respondent avers that mistakes of inadvertence of counsel ought not, in appropriate circumstances, be visited upon an innocent litigant. 12. The respondent urges the court to exercise its discretion in his favour by declining to dismiss the appeal and instead grant him leave to prepare, file and serve the Record of Appeal within a reasonable time. 13. Further, the respondent contends that the application is premature, misconceived and intended to shut out RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 3

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his right of appeal before the dispute is heard on its merits. 14. Subsequently, the applicant filed a supplementary affidavit sworn on 17/7/2026. He contends that the respondent has not adduced any evidence of the correspondence with his previous counsel on record. 15. The applicant also asserts that the respondent lost interest in the appeal since he has yet to start the appeal process by requesting typed proceedings. 16. The applicant insists that the respondent's delay in prosecuting the appeal is inordinate, unreasonable and inexcusable. He further contends that delay defeats justice and that equity aids the vigilant and not the indolent. 17. The applicant relies on written submissions dated 17/7/2026. On whether the appeal is ripe for dismissal, the applicant submits that equity aids the vigilant and not the indolent. That the respondent has slept on his rights and has only been woken by the current application. 18. Regarding the delay, the applicant submits that the delay in prosecuting the appeal goes against the principles of expeditious resolution of disputes and timely disposal of proceedings. He urged the court to RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 4

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be guided by the provisions of Sections 1A and 1B of the Civil Procedure Act. 19. In written submissions dated 15/7/2026, the respondent submits that courts have always ruled that mistakes will continue to be made and that unless there is fraud or intention to overreach, errors should not prevent a party from having his case determined on the merits. 20. On the principles of dismissal for want of prosecution, the respondent relied on Ivita -vs- Kyumbu [1984] KLR 441, where the court held that the test is whether the delay is prolonged and inexcusable and, if so, whether justice can nevertheless still be done despite the delay. 21. On this proposition, the respondent submitted that he is ready to prosecute the appeal without occasioning any prejudice to the applicant. 22. In addition, the respondent submitted that dismissing the appeal without hearing it on its merits would defeat the overriding objectives and unjustly deny him his constitutional right of appeal under Sections 1A and 1B of the Civil Procedure Act and Article 159(2)(d) of the Constitution. RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 5

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23. This application is premised on Order 42 Rule 35 of the Civil Procedure Rules which governs dismissal of appeals for want of prosecution. It states thus; 1. “Unless within three months after the giving of directions under rule 13 the appeal shall have been set down for hearing by the appellant, the respondent shall be at liberty either to set down the appeal for hearing or to apply by summons for its dismissal for want of prosecution. 2. If, within one year after the service of the memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a judge in chambers for dismissal.” 24. As provided by Sections 1A & 1B of the Civil Procedure Act, it is the duty of the parties to assist the court to adjudicate on the matters brought before it expeditiously. See Thomas Mwaura & Another vs- Eric Muhati & 2 Others (2012) eKLR, which quoted the holding in Mobil Kitale Service Station -vs- Mobil Oil Kenya Ltd HCCC No. 205 of 1990 (unreported) in which the court held; “It is in the interest of justice that litigation must be conducted expeditiously and efficiently so that injustice caused by RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 6

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delay would be a thing of the past. Justice would be better served if we dispose of matters expeditiously.” 25.The memorandum of appeal in this matter was filed on 11/10/2024. The respondent has not taken any further steps to file the record of appeal and set the appeal in motion. The respondent attributes the delay to poor communication with his then advocates on record. 26. In Nzoia Sugar Co. Ltd -vs- West Kenya Sugar Ltd. [2020] eKLR, the court held thus; “Parties should file suits in court with a view to prosecuting them. It should never be the case that suits are filed for the sake of it. They should not remain parked in the court registry, filing space and creating a false sense of backlog of cases. A suit should be prosecuted, failing which it should meet the fate of dismissal for want of prosecution.” 27. It is trite observation to say cases belong to litigants and not their counsel. The reasons adduced for the delay are insufficient and are not supported by any evidence indicating that he followed up on the progress of his appeal for more than one year. RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 7

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28. The respondent cannot now turn around and say that he is willing to pursue the appeal and will be prejudiced if the same is dismissed. With tremendous respect to the parties, I am constrained to say that courts are not parking bays for cases. 29. An appellant who files an appeal and does not prosecute it can only blame themselves when that appeal is dismissed. The upshot is that I find the application to be merited and I allow the same. 30. The appeal is thus dismissed with costs to the applicant. 31. It is so ordered. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 18th day of September, 2026. In the presence of: Court Assistant: Matui No appearance for the parties at 9.17 am. HON. G.M. GITONGA JUDGE, ELC KITALE RULING: KITALE: ELCA E024 OF 2024 -D.O.D – 18/9/2026 8

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