[2006] KEHC 1442 (KLR)
The court found that the applicants failed to provide any information as to when they discovered the dismissal of the appeal or reasons for their absence on the date of dismissal. The affidavit in support of the application was devoid of material facts necessary to establish sufficient cause or lack of undue delay....
Source-derived case information.
- Citation
- [2006] KEHC 1442 (KLR)
- Parties
- Appellant: Aneriko Omoto Okondo & 3 Others; Respondent: Silvester Masikana Gumba
- Court
- High Court
- Court Station
- High Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 84 of 1999
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal and Revive Appeal
- Outcome
- application dismissed with costs to the respondent
- Legal Topics
- Setting Aside Dismissal, Revival of Appeal, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Aneriko Omoto Okondo & 3 Others
Appellant
Silvester Masikana Gumba
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Revive Appeal
Legal Issues
- 1 Whether the applicants demonstrated sufficient cause to set aside the dismissal of the appeal.
- 2 Whether the application to revive the appeal was made without undue delay.
- 3 Whether the applicants were entitled to a stay of execution.
Ratio Decidendi
The court found that the applicants failed to provide any information as to when they discovered the dismissal of the appeal or reasons for their absence on the date of dismissal. The affidavit in support of the application was devoid of material facts necessary to establish sufficient cause or lack of undue delay. Consequently, the court held that the application was without merit and dismissed it with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application to set aside the dismissal order and revive the appeal is dismissed.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KAKAMEGA
Civil Appeal 84 of 1999
ANERIKO OMOTO OKONDO & 3 OTHERS .......................................................................APPELLANT
V E R S U S
SILVESTER MASIKANA GUMBA ...................................................................................RESPONDENT
R U L I N G
On 24. 7.2002, this court dismissed under Order 41 Rule 31 (2) of the Civil Procedure Rules the appeal No.84 of 1999 between Aneriko Omoto Okondo and three others as appellants and Silvester Masikana Gumba as respondent.
By their application made on 05. 12. 2005, the four applicants sought to set aside the said dismissal order with a view to revive the appeal. They also sought an order for stay of execution.
In the affidavit sworn by Aneriko Omoto Okondo in support of the application, the deponent did not specify when he or his co-applicants discovered the appeal had been dismissed. The affidavit was devoid of information from which the court could glean whether the applicants had made their application without undue delay and whether there was sufficient cause why they had not attended court on 24. 7.2002 when the appeal was dismissed. The application is without any merit and I have no hesitation in dismissing it with costs to the respondent.
Delivered, dated and signed at Kakamega this 29th day of June, 2006
G. B. M. KARIUKI
J U D G E