[2019] KEHC 966 (KLR)
The court found that the applicant's delay of approximately two months in bringing the application to set aside the dismissal order was not inordinate. The court noted that the applicant had expressed a clear intention to pursue the appeal and that the failure to attend court on the material date was attributable to...
Source-derived case information.
- Citation
- [2019] KEHC 966 (KLR)
- Parties
- Applicant: Charles Kariuki; Respondent: Naomi Gesare
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Application 65 of 2019
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
- Outcome
- application allowed
- Judges
- REA Ougo
- Legal Topics
- Setting Aside Orders, Reinstatement of Application, Appeal Out of Time
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Kariuki
Applicant
Naomi Gesare
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Set Aside Dismissal and Reinstate Application
Legal Issues
- 1 Whether the applicant has provided sufficient cause to set aside the dismissal order of 16/7/2019.
- 2 Whether the delay in filing the application to set aside the dismissal was inordinate.
- 3 Whether the applicant should be punished for the mistake or omission of his counsel.
Ratio Decidendi
The court found that the applicant's delay of approximately two months in bringing the application to set aside the dismissal order was not inordinate. The court noted that the applicant had expressed a clear intention to pursue the appeal and that the failure to attend court on the material date was attributable to his counsel rather than the applicant himself. The court held that it would be unjust to punish the applicant for his counsel's omission and exercised its discretion to set aside the dismissal order of 16/7/2019, thereby reinstating the application dated 25/5/2019 for hearing.
Court Disposition
application allowed
Orders
- The dismissal order dated 16/7/2019 is set aside.
- The application dated 25/5/2019 is reinstated for hearing.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
MISCELLANEOUS APPLICATION NO.65 OF 2019
CHARLES KARIUKI..........APPLICANT
-VERSUS-
NAOMI GESARE..........RESPONDENT
RULING
1. On the 31/5/2019 the applicant Charles Kariuki filed a certificate of urgency and a Notice of Motion dated the 29/5/2019 the applicant sought leave to appeal out of time and also order for stay of execution. The said application was to be heard 12/6/2019. On the said date 12/6/2019 the application was stood over to the 16/7/2019. On the 16/7/2019 the applicant did not present himself in court nor his lawyer. At 9. 42a.m. the application dated the 29/5/2019 was dismissed for non-attendance by the applicant.
2. On the 29/9/2019 the applicant moved to court again by way of certificate of urgency and a Notice of Motion dated the 20/9/2019. The applicant in the said application seeks to have the orders of 16/7/2019 set aside. He also seeks orders for stay of execution of the judgment and decree in Kisii CMCC NO.85 of 2013 Naomi Gesare –vs- Charles Kariuki.
3. In his affidavit in support of the application the applicant claims that the order made on the 16/7/2019 was made through no fault or wrong on the part of the applicant and his counsel and that the matter was not cause- listed. This is not true. The applicant did not attach the cause list for the 16/7/2019. The record shows that the matter was properly before the court after it was cause listed and was called out twice before it was dismissed. The applicant other reason is that they could not get the court file from High Court Civil Registry and the file could not be traced.
4. I find that the applicant has not attached any letter addressed to either the Executive officer of the Deputy Registrar in charge of High Court indicating that his counsels firm had sought for the file and that it could not be traced.
5. His 3rd reason is that he is keen on pursuing the appeal as he feels aggrieved by the decision of Trial Magistrate. The applicant has a right to appeal. I note that in the application that was dismissed he sought to appeal out of time. He indicated he was aggrieved by the judgment and decree in Kisii CMC No. 85 of 2017. He avers that the delay occasioned in filing the application is not inordinate and that the court should exercise its direction and reinstated the application dated 25/5/2019.
6. The application was opposed on grounds that the applicant has not satisfactorily explained the reasons for filing the application on the 20/9/2019 yet the dismissal order was made on the 16/7/2019. That the delay is inordinate.
7. It is clear that the current application was filed about 2 months after the application dated 29/5/2019 was dismissed. 2 months in my view cannot be considered as inordinate delay. The applicant claims that he still wants to pursue his appeal. From what is deponed it’s clear that it is his counsel who did not attend to the matter. I shall not punish the applicant for the mistake or omission of his counsel. I will therefore exercise my discretion and set aside the dismissal order dated 16/7/2019. The application dated the 25/5/2019 is reinstated for hearing. The parties shall take date for interpartes hearing of the said application in court. Costs shall be in the cause.
Dated, signed and delivered this 8th day of October 2019.
R.E OUGO
JUDGE
In the presence of;
Mr. Nyangacha h/b Mr. Ondande for the applicant
Respondent Absent
Ms. Rael Court Clerk