[2004] KEHC 205 (KLR)
The court found that even if the appellant's counsel was not served with the notice of dismissal, there was no satisfactory explanation for the failure to prosecute the appeal for over two years. The reason advanced, that the appellant is an institution with changing officials, was not considered a valid excuse. The...
Source-derived case information.
- Citation
- [2004] KEHC 205 (KLR)
- Parties
- Appellant: The Chairman, The Board of Governors Ikoba Secondary School; Respondent: Philip Oteino t/a Pnosco Laboratory Equipment
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 169 of 2000
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application dismissed with costs
- Judges
- K Bauni
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Service of Notice, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Chairman, The Board of Governors Ikoba Secondary School
Appellant
Philip Oteino t/a Pnosco Laboratory Equipment
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the appeal for want of prosecution should be set aside.
- 2 Whether failure to serve notice of dismissal on the appellant's counsel is sufficient ground to set aside the dismissal order.
- 3 Whether the appellant's explanation for delay in prosecuting the appeal is excusable.
Ratio Decidendi
The court found that even if the appellant's counsel was not served with the notice of dismissal, there was no satisfactory explanation for the failure to prosecute the appeal for over two years. The reason advanced, that the appellant is an institution with changing officials, was not considered a valid excuse. The court held that counsel did not require further instructions to file the record of appeal or take necessary steps to prosecute the matter. The delay was therefore not excusable, and the application to set aside the dismissal order was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal order is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA OF KISII CIVIL APPEAL 169 OF 2000
THE CHAIRMAN
THE BOARD OF GOVERNORSIKOBASECONDARY SCHOOL…………… APPELLANTS
VERSUS
PHILIP OTEINOT/A PNOSCO LABORATORY EQUIPMENT ………...……... RESPONDENT
RULING
The appellant filed this appeal on 3rd April 2000. In October 2002, the court dismissed the appeal as the parties had not taken any steps to prosecute it.
Applicant filed this application on 20th February 2003 seeking to have the dismissed order set aside.
Mr. Onyancha for the applicant said he was not served with Notice for dismissal. He further said that the appellant is an institution and they did not give him instructions to prosecute the appeal.
Application was opposed by Mr. Ochillo who submitted that the counsel for appellant did not need any instructions to prosecute the appeal.
It could be true that counsel for the appellant may not have received notice for dismissal of the appeal. However even if he had there was no good reason he would have given why the appeal remained unprosecuted for two years. His only reason was that the appellant being an institution kept on changing officials. That is no good reason. The appeal was admitted on 12/6/01. Appellant did not even file a record of appeal for over one year. As submitted counsel did not need any instructions to do that. The delay therefore is not explained and therefore not excusable.
In the circumstances the application is dismissed with costs.
Dated this 18th November, 2004
KABURU BAUNI
JUDGE
18/11/04
Mr. Nyasimi H/B for Mr. Ochilo for Respondent
N/A for Application
KABURU BAUNI
JUDGE