David Kimani Njagi and Tabitha Nyambura Waithanji the appellants herein have filed an application dated 30th April 2024 seeking orders that this Honorable Court be pleased to vary and/or set aside the orders issued 24th April 2024 dismissing the applicants\' appeal for want of prosecution
That if the Honorable Court grants prayer 2 above the Honorable Court be pleased to consider the affidavit to show cause of Nyambura Njuguna Advocate deponed on 15th April 2024 and filed on 17th April 2024 and find that the appellants have shown cause as to why their appeal should not be dismissed and grant the appellants leave to prosecute their appeal. In the alternative if the Honorable Court grants prayer 2 above, the Court be pleased to allow the appellants show cause as to why their appeal should not be dismissed in terms of the affidavit to show cause deponed by Nyambura Njuguna on 15th April 2024 and filled on 17th April 2024 .
The grounds of the applications are that the appellants\' Advocate had purposed to attend Court on 24th April 2024 and show cause as to why the appeal should not be dismissed and had to that end filed an affidavit to show cause on record . The Advocates absence in Court when the matter was called out Was not deliberate but was inadvertently due to the fact that she used the wrong virtual link in her bid to join virtual Court. The Advocate-prays that her mistakes not be visited upon her clients who are still desirous of prosecuting their appeal on the merits. The appellants beseech this Honorable Court to allow the orders sought in order that \'they may be have their day in court in ventilating their appeal for the. ends of substantive justice.
The supporting affidavit was sworn by Nyambura Njuguna who states that the failure to attend court for hearing was caused by the hardship as a result of communication breakdown between her and the court.
The respondent on their part is in the replying affidavit states that The respondent on her part is in the replying affidavit States that the Appellants have not taken any action whatsoever since 13th May 2021 to have the appeal set down for hearing,
The respondent laments that to date the Appellants have never filed their record of appeal. That the Appellants do not have any reason/justification for not filing the record of appeal to date and setting down the appeal for hearing. That the Appellants have admitted that they received the typed proceedings from the trial court in August 2023 but to date, they have not filed the record of appeal . The fact that there was an application for stay of execution being heard by the trial court did not in any way prevent the Appellants from taking the necessary action to set down the appeal for hearing. The Appellants filed the appeal and went to sleep and it is clear that they are no longer interested in the appeal. The respondent contends that the appellant’s application seeking to reinstate the appeal is frivolous, lacks merits and the same ought to be dismissed.
I have considered the application and the reply and the rival submissions and do find that the failure by the applicants advocate to attend court was a communication between the counsel for the Applicant and the court and therefore the appellant should not be punished for the same. Moreover, the applicant is desirous of approaching the seat of justice and therefore should be afforded a hearing. I do review the court order dismissing the appeal for want of prosecution and do order the appellant to file and serve the record of appeal within 30 days failure of which the appeal stands dismissed with costs.
That if the Honorable Court grants prayer 2 above the Honorable Court be pleased to consider the affidavit to show cause of Nyambura Njuguna Advocate deponed on 15th April 2024 and filed on 17th April 2024 and find that the appellants have shown cause as to why their appeal should not be dismissed and grant the appellants leave to prosecute their appeal. In the alternative if the Honorable Court grants prayer 2 above, the Court be pleased to allow the appellants show cause as to why their appeal should not be dismissed in terms of the affidavit to show cause deponed by Nyambura Njuguna on 15th April 2024 and filled on 17th April 2024 .
The grounds of the applications are that the appellants\' Advocate had purposed to attend Court on 24th April 2024 and show cause as to why the appeal should not be dismissed and had to that end filed an affidavit to show cause on record . The Advocates absence in Court when the matter was called out Was not deliberate but was inadvertently due to the fact that she used the wrong virtual link in her bid to join virtual Court. The Advocate-prays that her mistakes not be visited upon her clients who are still desirous of prosecuting their appeal on the merits. The appellants beseech this Honorable Court to allow the orders sought in order that \'they may be have their day in court in ventilating their appeal for the. ends of substantive justice.
The supporting affidavit was sworn by Nyambura Njuguna who states that the failure to attend court for hearing was caused by the hardship as a result of communication breakdown between her and the court.
The respondent on their part is in the replying affidavit states that The respondent on her part is in the replying affidavit States that the Appellants have not taken any action whatsoever since 13th May 2021 to have the appeal set down for hearing,
The respondent laments that to date the Appellants have never filed their record of appeal. That the Appellants do not have any reason/justification for not filing the record of appeal to date and setting down the appeal for hearing. That the Appellants have admitted that they received the typed proceedings from the trial court in August 2023 but to date, they have not filed the record of appeal . The fact that there was an application for stay of execution being heard by the trial court did not in any way prevent the Appellants from taking the necessary action to set down the appeal for hearing. The Appellants filed the appeal and went to sleep and it is clear that they are no longer interested in the appeal. The respondent contends that the appellant’s application seeking to reinstate the appeal is frivolous, lacks merits and the same ought to be dismissed.
I have considered the application and the reply and the rival submissions and do find that the failure by the applicants advocate to attend court was a communication between the counsel for the Applicant and the court and therefore the appellant should not be punished for the same. Moreover, the applicant is desirous of approaching the seat of justice and therefore should be afforded a hearing. I do review the court order dismissing the appeal for want of prosecution and do order the appellant to file and serve the record of appeal within 30 days failure of which the appeal stands dismissed with costs.