[2023] KEHC 20324 (KLR)
The court found that the application was not res judicata because the previous application had been withdrawn before adjudication. However, the applicants failed to demonstrate any genuine effort or interest in prosecuting the appeal for an inordinate period of three years. There was no evidence of follow-up on the...
Source-derived case information.
- Citation
- [2023] KEHC 20324 (KLR)
- Parties
- Applicant: Wilfred Akenga Angwenyi & another; Respondent: Sangany Agencies Limited; Respondent: Joseph Ochieng Onunga
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 133 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application declined
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Judicial Discretion, Res Judicata, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Akenga Angwenyi & another
Applicant
Sangany Agencies Limited
Respondent
Joseph Ochieng Onunga
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the application to set aside the dismissal of the appeal for want of prosecution and reinstate the appeal is merited.
- 2 Whether the application is res judicata due to a previous similar application having been withdrawn.
- 3 Whether the applicants demonstrated sufficient interest and diligence in prosecuting the appeal.
Ratio Decidendi
The court found that the application was not res judicata because the previous application had been withdrawn before adjudication. However, the applicants failed to demonstrate any genuine effort or interest in prosecuting the appeal for an inordinate period of three years. There was no evidence of follow-up on the request for proceedings or any steps taken to advance the appeal. The explanation of a file mix-up was deemed flimsy and unsupported by evidence. The court held that its discretion to reinstate an appeal is not intended to assist parties who have been indolent or have obstructed the course of justice. Consequently, the application to set aside the dismissal and reinstate the...
Court Disposition
application declined
Orders
- The application to set aside the dismissal of the appeal and reinstate the appeal is declined.
- No orders as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
Angwenyi & another v Sangany Agencies Limited & another (Civil Appeal 133 of 2018) [2023] KEHC 20324 (KLR) (20 July 2023) (Ruling)
Neutral citation: [2023] KEHC 20324 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal 133 of 2018
HK Chemitei, J
July 20, 2023
Between
Wilfred Akenga Angwenyi & another
Applicant
and
Sangany Agencies Limited
1st Respondent
Joseph Ochieng Onunga
2nd Respondent
Ruling
1. The Notice of Motion application by the applicant prays for orders that this court be pleased to set aside the orders of 1st February 2021 dismissing the appellants appeal herein for want of prosecution and reinstate the same and allow the same to be heard on merit. The applicant as well prayed for costs.
2. The application is based on the grounds thereof and the sworn affidavit of Emmah Oganga advocate sworn on 14th March 2022 together with the annexures therein.
3. The said counsel for the appellant deponed that the appellant was unable to process the appeal for hearing since the proceedings at the trial court had not been availed despite their formal request. She said that the orders dismissing the appeal was issued in their absence as there was a mix up of their files between those before honourable Justice Ngetich and Ngugi J (as he then was.)
4. She went on to deponed that by the time they realised, the matter had already been called out and the dismissal orders issued. It was therefore her case that this court still had discretion to reinstate the same as the respondents shall suffer no prejudice.
5. Victor Nganga advocate for the respondents objected to the application through his affidavit sworn on 20th May 2022. He deponed that the application was res judicata as a similar application had been filed and withdrawn by the applicant dated 10th February 2021. He said that they had already replied to the said application.
6. He said that the application was a blatant abuse of the court process and the same ought to be disallowed for the simple reason that what the applicants were doing was simply a knee jerk reaction.
7. The court directed the parties to file written submission which the court has perused together with the authorities cited.
8. Each of them obviously submitted in line with the issues raised in the respective rival affidavits.
9. The basic issue in my view is whether the application is merited considering the orders dismissing the appeal. It is not true that the application is res judicata for the reason that what was withdrawn was not adjudicated upon by the court. The applicants thought that the same had material errors and they withdrew before it was canvassed. This does not run contrary to the provisions of Section 7 of the Civil Procedure Act.
10. What then is the merit of the application.? I respectfully do not think that the court was in error when it dismissed the appeal. The issue of mix up of the files between the two courts as advanced by the applicants is a very flimsy reason to say the least. There is no evidence produced by the applicants in form of a cause list for the day.
11. Even more importantly is whether they were still interested with the appeal. The notice to dismiss the appeal was issued and orders dismissing the appeal was dated 1st February 2021 whereas the memorandum of appeal was filed on 7th September 2018. This was about three years after the judgement.
12. The attached letter requesting for proceedings dated 19th September 2018 was never followed up as there is no evidence to that effect. At the same time, as at drafting this ruling, there is no evidence of any step taken by the applicant to show any interest in the appeal. In short, I find that the applicants have been indolent with no interest at all in the appeal necessitating the court to issue the notice.
13. The case of Shah v. Mbogo (1967) EA 116 clearly stated that this court has the necessary discretion to ensure that justice is done without resulting into hardships and that excusable mistakes can be allowed,” but is not designed to assist the person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.”
14. In this case I find that it is the applicants who have obstructed the course of justice by failing to prosecute the appeal and leaving the court with no other option but to issue notice of dismissal. The three years’ period was inordinate in the circumstances. There is no evidence of any effort by the applicants to process the appeal or as found above follow up with the registry.
15. For these reasons, the application is declined with no orders as to costs.
DATED SIGNED AND DELIVERED AT NAKURU VIA VIDEO LINK THIS 20TH DAY OF JULY 2023. H K CHEMITEIJUDGE