[2010] KEHC 3728 (KLR)
The court found that the delay in prosecuting the appeal was attributable to the appellant's former advocates, who failed to communicate with the appellant and did not keep him informed of the proceedings, including the notice to show cause. The respondent did not contest the facts presented by the appellant. The...
Source-derived case information.
- Citation
- [2010] KEHC 3728 (KLR)
- Parties
- Appellant: Benson Maina Kamau; Respondent: Njoki Maina
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 1999
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal Order and Reinstate Appeal
- Outcome
- Appeal reinstated; dismissal order set aside; conditional order for prosecution within 60 days.
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Inherent Jurisdiction, Advocate Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benson Maina Kamau
Appellant
Njoki Maina
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal Order and Reinstate Appeal
Legal Issues
- 1 Whether the order dismissing the appeal for want of prosecution should be set aside.
- 2 Whether the appellant should suffer the consequences of his advocate's failure to communicate and prosecute the appeal.
Ratio Decidendi
The court found that the delay in prosecuting the appeal was attributable to the appellant's former advocates, who failed to communicate with the appellant and did not keep him informed of the proceedings, including the notice to show cause. The respondent did not contest the facts presented by the appellant. The court held that it would be unjust to punish the appellant for the mistakes of his advocate and exercised its inherent jurisdiction to set aside the dismissal order. The appeal was reinstated on condition that it be prosecuted within 60 days, failing which it would stand dismissed automatically.
Court Disposition
Appeal reinstated; dismissal order set aside; conditional order for prosecution within 60 days.
Orders
- The order dismissing the appeal made on 28th November 2008 is set aside.
- The appeal is reinstated and must be prosecuted within 60 days, failing which it shall stand dismissed automatically.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Civil Appeal 32 of 1999
BENSON MAINA KAMAU …………………………….……………… APPELLANT
VERSUS
NJOKI MAINA………………..……………………..……………...RESPONDENT
(Being Appeal against the judgment of J. B. A. Olukhoye, Ag. Resident Magistrate, Murang’a, in Principal Magistrate’s Succession Cause No. 260 of 1992 delivered on 12th March 1999)
JUDGMENT
On the 28th day of November 2008, this Court dismissed this appeal for want of prosecution. When the Appellant learnt of the dismissal order, he invoked the inherent jurisdiction of this Court through the Motion dated 16th July 2009 and applied for the dismissal order to be set aside. The Motion was served but the Respondent did not file any reply hence the Applicant was granted leave to proceed for hearing exparte underOrder L rule 16 (3)of the Civil Procedure Rules.
Benson Maina Kamau, the Appellant/Applicant herein, blamed the firm of Waithira Mwangi & Co. Advocates for the delay to have the appeal ready for hearing. He said he was kept in the dark on the progress of the appeal. He beseeched this court not to let him suffer for the mistakes of his advocate. He accused his erstwhile advocate for failing to notify him of the notice to show cause why the appeal should not be dismissed served upon him.
I have considered the grounds set out on the face of the Motion and the facts deponed in the affidavit filed in support of the Motion. The facts deponed in the aforesaid affidavit have not been controverted by the Respondent. I have no reason to doubt the averments made by the Appellant/Respondent. I am convinced that the delay to make the appeal ready for hearing was caused by the firm of Waithaka Mwangi & Co. Advocates. There is no evidence that the aforesaid firm ever communicated with the Appellant. It is clear he kept the Appellant in the dark of the progress of the appeal. I am of the view that the Appellant should not be punished for the mistakes of his advocate. For the above reason, I hereby exercise my inherent power by setting aside the order dismissing the appeal made on 28th November 2008. The appeal is reinstated but should be prosecuted within a period of 60 days failure to which the same shall automatically stand dismissed. Costs of the Motion be in the appeal.
Dated and delivered at Nyeri this 26th day of February 2010.
J. K. SERGON
JUDGE
In open court in the presence of the Appellant. No appearance of the Respondent.