[2019] KEHC 8790 (KLR)
The court found that the applicant had provided sufficient reasons for his absence and failure to file the record of appeal, including inadvertence and illness of counsel, as well as lack of lower court proceedings. The court emphasized that the matter was not old and that technicalities should not override...
Source-derived case information.
- Citation
- [2019] KEHC 8790 (KLR)
- Parties
- Appellant: Charles Mutinda Muasya; Respondent: Rose Wanina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 46 of 2017
- Procedural Posture
- Civil Appeal / Application for Reinstatement of Appeal
- Outcome
- Application allowed; appeal reinstated subject to conditions.
- Judges
- A Ali-Aroni
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Attendance, Procedural Fairness
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Charles Mutinda Muasya
Appellant
Rose Wanina
Respondent
Procedural Posture
Civil Appeal / Application for Reinstatement of Appeal
Legal Issues
- 1 Whether sufficient cause has been shown to warrant reinstatement of the dismissed appeal.
- 2 Whether the applicant's failure to attend court and file the record of appeal was excusable.
- 3 Whether the application was brought under the correct procedure and within reasonable time.
Ratio Decidendi
The court found that the applicant had provided sufficient reasons for his absence and failure to file the record of appeal, including inadvertence and illness of counsel, as well as lack of lower court proceedings. The court emphasized that the matter was not old and that technicalities should not override substantive justice. Consequently, the court exercised its discretion to reinstate the appeal, subject to the applicant filing the record of appeal within 60 days and obtaining a hearing date within 90 days, and ordered throw away costs to the respondent.
Court Disposition
Application allowed; appeal reinstated subject to conditions.
Orders
- Orders issued on 7th December 2017 dismissing the appeal are reversed and vacated.
- Applicant to file the record of appeal within 60 days.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 46 OF 2017
CHARLES MUTINDA MUASYA........................................APPELLANT
AND
ROSE WANINA...................................................................RESPONDENT
R U L I N G
1. The application before court seeks to reinstate the appeal which was dismissed on the 7th of December 2017.
2. Counsel for the Applicant states that due to inadvertence of his office he was not aware of the mention date and, secondly counsel has been sick.
3. Further counsel cites lack of proceedings from the lower court as another hindrance for pursuing the appeal. Counsel contends that circumstances leading to the dismissal of the appeal were beyond his control.
4. The application was opposed through the Respondent’s affidavit of 19th February 2019, to the effect that the application is brought under the wrong procedure; no satisfactory reasons have been given to reverse the orders; there has been lethargy on the part of the applicant’s counsel; application is late in time and that the same is meant to delay the case for determination of the matrimonial property.
5. The matter was slated for mention for purposes of obtaining direction directions on the 7th of December 2017. From the record it is not very clear whether the applicant’s counsel was present or represented. The court on its own motion following a comment by the Respondent’s counsel that the Applicant was not interested in the matter, dismissed the same for lack of interest. I also have noted that the record of appeal had not been filed at the time and therefore the matter was not ready for hearing.
6. In my view against the above background sufficient reasons have been laid out why the Applicant ought not to be shut out of his case.
Admittedly the matter is not old as such and for now may not even qualify for a hearing date, considering pending matters which are old.
Further the court is not inclined to consider technicalities at the expense of substantive justice in the circumstances of this case.
7. Consequently, I reverse and vacate the orders issued on 7thDecember 2017 on two conditions;
i. The Applicant do file the Record of Appeal within the next 60 days and
ii. The Applicant obtains a hearing date for the Appeal within the next 90 days.
8. Throw away costs of Kshs.5,000/= will be paid to the Respondent in any event.
DATED, SIGNEDandDELIVEREDat NAIROBI THIS 28TH DAY OF MARCH, 2019.
......................
ALI-ARONI
JUDGE