[2021] KEHC 9812 (KLR)
The court found that the applicant, being a lay person and of advanced age, may not have fully understood the nature of the orders made on October 1, 2021. The applicant's explanation for non-attendance—difficulty accessing the virtual platform due to lack of a phone and old age—was accepted on the benefit of doubt....
Source-derived case information.
- Citation
- [2021] KEHC 9812 (KLR)
- Parties
- Applicant: ANG; Respondent: ZNG
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Family Appeal 46 of 2018
- Procedural Posture
- Family Appeal / Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal order set aside; applicant to show cause at a new hearing date.
- Judges
- JN Onyiego
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Virtual Hearings, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
ANG
Applicant
ZNG
Respondent
Procedural Posture
Family Appeal / Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the applicant has provided sufficient cause for non-attendance leading to dismissal of the appeal for want of prosecution.
- 2 Whether the orders dismissing the appeal should be set aside and the appeal reinstated.
Ratio Decidendi
The court found that the applicant, being a lay person and of advanced age, may not have fully understood the nature of the orders made on October 1, 2021. The applicant's explanation for non-attendance—difficulty accessing the virtual platform due to lack of a phone and old age—was accepted on the benefit of doubt. The court exercised its discretion to set aside the dismissal order, emphasizing the importance of giving parties an opportunity to be heard, especially in matters involving land and multiple beneficiaries. The court ordered that the applicant be given a chance to show cause why the application should not be dismissed for want of prosecution.
Court Disposition
Application allowed; dismissal order set aside; applicant to show cause at a new hearing date.
Orders
- The orders of October 1, 2021 dismissing the appeal are set aside.
- The applicant is given an opportunity to show cause why the application dated November 12, 2018 should not be dismissed for want of prosecution.
Full Case Text
Judgment text and source record
23 paragraphs
ANG v ZNG (Family Appeal 46 of 2018) [2021] KEHC 9812 (KLR) (5 November 2021) (Ruling)
Neutral citation: [2021] KEHC 9812 (KLR)
Republic of Kenya
In the High Court at Mombasa
Family Appeal 46 of 2018
JN Onyiego, J
November 5, 2021
Between
ANG
Applicant
and
ZNG
Respondent
Ruling
1. The appeal herein was dismissed on the court’s own motion for want of prosecution on October 1, 2021. This was pursuant to issuance of a notice to show cause dated September 3, 2021. Consequently, the appellant filed an application dated October 4, 2021 seeking to reinstate the application dated November 12, 2018 and the draft memorandum of appeal which was dismissed for want of prosecution.
2. The application is anchored on the grounds set out on the face it and an affidavit sworn on October 4, 2021 by ANG. He averred that his application dated November 12, 2018 was scheduled for hearing on October 1, 2021 which day he could not join the virtual platform as he does not have a phone.
3. That he was assisted to join the virtual platform later in the day by which time he found his case had been call out and dismissed for want of prosecution. He stated that he is an old man aged 90 years hence his case should be handled physically and not virtually. That the appeal concerns land hence should be heard and all beneficiaries accorded an opportunity to ventilate their case.
4. Despite service of the application upon the respondent, he did not bother to file any response. During the hearing, the applicant basically adopted the content contained in his affidavit in support of the application.
5. I have considered the application herein and the affidavit in support. From the prayers sought, it would appear that the applicant does not understand the nature of the orders made on 1st October, 2021. Being a lay person I would understand.
6. To clarify the position , the orders of October 1, 2021 were made pursuant to a notice to show cause why the appeal filed herein and the application dated November 12, 2018 couldn’t be dismissed for want of prosecution. Unfortunately, the applicant did not turn up hence the dismissal.
7. The appellant ought to have addressed non-attendance to show cause. However, he claimed that he tried to log into the virtual platform on October 1, 2012 but was unable due to old age. Although it is difficult to know the truth of the alleged inability to log in, I will give him a benefit of doubt on account of his age.
8. Accordingly, the Orders of October 1, 2021 are set aside and the applicant given an opportunity to show cause why the application dated November 12, 2018 should not be dismissed for want of prosecution. Hearing on 17th November, 2021.
DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 5TH DAY OF NOVEMBER, 2021J. N. ONYIEGOJUDGE