[2022] KEHC 2495 (KLR)
The court found that although the appeal was dismissed for want of prosecution, there was no evidence that the notice of dismissal was served on either party. The absence of service of the notice of dismissal constituted sufficient cause to set aside the dismissal order. The court exercised its discretion to...
Source-derived case information.
- Citation
- [2022] KEHC 2495 (KLR)
- Parties
- Applicant: Albert Ogosi Miruka; Respondent: Kuehne+Nagel Limited
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 77 of 2018
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed; dismissal order set aside; appeal reinstated with conditions.
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Service of Notice, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Albert Ogosi Miruka
Applicant
Kuehne+Nagel Limited
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution should be set aside and the appeal reinstated.
- 2 Whether the applicant was properly served with the notice of dismissal.
- 3 Whether the Covid-19 restrictions constituted a valid excuse for non-attendance.
Ratio Decidendi
The court found that although the appeal was dismissed for want of prosecution, there was no evidence that the notice of dismissal was served on either party. The absence of service of the notice of dismissal constituted sufficient cause to set aside the dismissal order. The court exercised its discretion to reinstate the appeal, granting the applicant 45 days to process the appeal for hearing, failing which the appeal would stand dismissed automatically. The court rejected the applicant's excuse regarding Covid-19 restrictions as insufficient but noted that the respondent also took no steps to prosecute or dismiss the appeal.
Court Disposition
Application allowed; dismissal order set aside; appeal reinstated with conditions.
Orders
- The orders of 18th March 2020 dismissing the appeal are set aside.
- The applicant is granted 45 days to process the appeal for hearing, failing which the appeal shall stand dismissed automatically.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
CIVIL APPEAL NO. 77 OF 2018
ALBERT OGOSI MIRUKA.............................................................APPLICANT
VERSUS
KUEHNE+NAGEL LIMITED.......................................................RESPONDENT
RULING
1. This court on 18th March 2020 dismissed this appeal for want of prosecution. The applicant herein seeks by his Notice of Motion dated 23rd March 2020 to set aside the same and have it reinstated and be heard on merit.
2. The application is supported by the affidavit of Dennis Manono Nyatundo sworn on the same date. He avers that the applicant was not served with a notice of dismissal although the same had not been mentioned on 13th February 2020 when it had been placed for directions.
3. That the date of 18th March 2020 fell when there was Covid restrictions and thus he was unable to attend to the court.
4. The respondent via the replying affidavit of its counsel Caroline Chelangat opposed the application stating that the dismissal was warranted as the applicant had not prosecuted his appeal two and half years after filing. The dismissal was thus in line with Order 42 Rule 35 of the Civil Procedure Rules.
5. The court has perused the courts record, the application and the response. It is true that the court dismissed the appeal for want of prosecution. There was no evidence that the applicant had taken any step to ensure that the appeal was processed.
6. The notice however of dismissal although a copy is on record and is dated 22nd December 2020. There is no evidence that the same was served upon the applicant or the respondent. In the absence of the said service the applicant has a point of complain. It is however apparent that it is the court that moved on its own motion to dismiss the suit.
7. The issue of Covid pandemic and the curfew is too lame an excuse by the applicant. There was nothing to show that he was unable to attend court because of the curfew.
8. Be it as it may the respondent did not take any action to ensure that the appeal is dismissed or for that matter processed. It cannot therefore take much credit.
9. In the premises, and applying the discretion of this court, the application is hereby allowed. The orders of 18th March 2020 are hereby set aside. The applicant is granted 45 days to process his appeal for hearing and in default it shall stand dismissed automatically.
10. Costs shall be in the cause.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 10TH DAY OF FEBRUARY, 2022
H K CHEMITEI
JUDGE