[2013] KEHC 1540 (KLR)
The court found that while the appellant provided a reasonable explanation for the delay up to the point of learning about the dismissal, the subsequent delay of over 40 days in filing the application for reinstatement was inordinate and inexcusable. The court emphasized that applications of this nature must be made...
Source-derived case information.
- Citation
- [2013] KEHC 1540 (KLR)
- Parties
- Appellant: Cecilia Wanja Waweru; Respondent: Jackson Wainaina Muiruri; Respondent: Lucy Nduta Riungo
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 56 of 1999
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- application for reinstatement dismissed with costs
- Judges
- A Ombwayo
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Inordinate Delay, Fair Trial Rights
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Cecilia Wanja Waweru
Appellant
Jackson Wainaina Muiruri
Respondent
Lucy Nduta Riungo
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the delay in filing the application for reinstatement after learning of the dismissal was inordinate and inexcusable.
- 2 Whether failure by the court to notify the appellant of the intention to dismiss the appeal breached the appellant's right to a fair trial.
Ratio Decidendi
The court found that while the appellant provided a reasonable explanation for the delay up to the point of learning about the dismissal, the subsequent delay of over 40 days in filing the application for reinstatement was inordinate and inexcusable. The court emphasized that applications of this nature must be made within a reasonable time, and the appellant failed to act expeditiously after becoming aware of the dismissal. The principle that equity assists the vigilant, not the indolent, was applied, leading to the dismissal of the application for reinstatement. The court also noted that the registrar's failure to notify the appellant of the intention to dismiss was a breach of fair...
Court Disposition
application for reinstatement dismissed with costs
Orders
- The application for reinstatement is dismissed.
- The appellant shall bear the costs of the application.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
CIVIL APPEAL NO.56 OF 1999
CECILIA WANJA WAWERU.…........................................APPELLANT
VERSUS
JACKSON WAINAINA MUIRURI)
LUCY NDUTA RIUNGO )..............................RESPONDENTS
R U L I N G
The appeal herein was filed on 18/6/1999. The same was admitted on 21/3/2000. Justice Makhandia dismissed the same on 13/2/2009 for want of prosecution, approximately 10 years after the appellant failing to take any action. The appellant filed the application for reinstatement on the 13/5/2013 approximately 4 years after dismissal. The court finds that there is inordinate delay as argued by Mr. Njoroge. The explanation for the delay by Mr. Wandaka that the applicants/appellants were not aware of the dismissal until the 2/4/2013 is sound however, the applicant again took more than one month to file the application for reinstatement even after becoming aware of the dismissal.
This court finds that there are good reasons given by the applicants for the delay in filing the application for reinstatement upto the 2nd of April 2013. Moreover failure by the court through the registrar to notify the appellant of the intention to dismiss the appeal for want of prosecution was a breach of the rights of the appellant to fair trial. However, the issue to be determined by the court is whether a delay of one month to commence the process of reviewing of the decision of justice Makhandia and therefore reinstating the appeal was inordinate.
Applications of this nature are supposed to be filed within reasonable time. Bearing in mind that an appeal from the lower court to the High Court should be filed within 30 days from the decision of the court, this court believes that a delay of more than 40 days to file the application to reinstate the dismissed appeal is inordinate and equity assists the vigilant not the indolent. After realizing that the appeal had been dismissed for want of prosecution, the appellant should have moved to court expeditiously within reasonable time. A delay of 40 days is inordinate and inexcusable and therefore the application is dismissed with costs.
Dated, signed and delivered on 30th day of October 2013.
A. O. OMBWAYO
JUDGE