[2008] KEHC 2567 (KLR)
The court held that it is inappropriate to invoke Section 3A of the Civil Procedure Act to set aside an order dismissing an appeal for want of prosecution where other remedies, such as review or appeal, are expressly provided for under the Civil Procedure Act and Rules. The court emphasized that inherent powers are...
Source-derived case information.
- Citation
- [2008] KEHC 2567 (KLR)
- Parties
- Appellant: Carnation Plants Limited; Respondent: Rose Mumbua Mutuku
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 225 of 2006
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal Order
- Outcome
- Application struck out as incompetent with costs to the respondent.
- Judges
- ARM Visram
- Legal Topics
- Setting Aside Orders, Inherent Jurisdiction, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Carnation Plants Limited
Appellant
Rose Mumbua Mutuku
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the court can set aside an order dismissing an appeal for want of prosecution under Section 3A of the Civil Procedure Act where other remedies exist.
- 2 Whether the application to set aside is competently before the court.
Ratio Decidendi
The court held that it is inappropriate to invoke Section 3A of the Civil Procedure Act to set aside an order dismissing an appeal for want of prosecution where other remedies, such as review or appeal, are expressly provided for under the Civil Procedure Act and Rules. The court emphasized that inherent powers are not to be exercised where a specific remedy exists, and the application was therefore incompetent. The application was struck out with costs to the respondent.
Court Disposition
Application struck out as incompetent with costs to the respondent.
Orders
- The application to set aside the dismissal order is struck out.
- Costs awarded to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI (NAIROBI LAW COURTS)
Civil Appeal 225 of 2006
CARNATION PLANTS LIMITED ……………………… APPELLANT
VERSUS
ROSE MUMBUA MUTUKU ….……………...……… RESPONDENT
RULING
Pursuant to an application dated 30th July, 2007 and filed 1st August, 2007, this Court dismissed the Appeal herein for want of prosecution. In doing so, the Court noted that that Application was not opposed as no Replying Affidavit had been filed, despite the same having been served upon the Appellant some six months prior to the hearing date. In any event, the Ruling was made on merit after hearing both Counsels.
Now, the Appellant is before this Court, with an application made under Section 3A of the Civil Procedure Act, to “set aside” the Orders of this Court dismissing the Appeal. Mr Kaka, Counsel for the Respondent has argued that the application is incompetently before this Court, as Section 3A cannot be invoked where the Civil Procedure Act and Rules provide for other remedies, such as Review (under Order 44) and appeal against the Ruling to the Court of Appeal. He submitted that here the Order was made by the Court after hearing both the parties, and the same cannot be set aside under Section 3A.
I agree with Mr Kaka that it is inappropriate to invoke Section 3A of the Civil Procedure Act where other remedies are available. As Dalton, J said in Saldanha vs Bhailal & Company (1968) E A 28 that there is no rule of law that inherent powers cannot be invoked where another remedy is available or a specific rule exists covering a particular procedure. The position is that the courts will not normally exercise their inherent powers where a specific remedy is available and will rarely, if ever, do so where a specific remedy existed, but, for some reason, such as limitation, is no longer available.
Order 9A Rule 10 provides for setting aside of Judgments for non-appearance, while Order 9B Rule 8 provides for setting aside of Judgments for non-attendance.
I am, therefore, of the view that this application is incompetently before the Court, and the same is struck out with costs to the Respondent.
Dated and delivered at Nairobi this 27th day of May, 2008.
ALNASHIR VISRAM
JUDGE