[2022] KEHC 1660 (KLR)
The court found that the appellant had not filed a record of appeal nor demonstrated any real intention to prosecute the appeal since its dismissal. There was no evidence of steps taken to obtain lower court proceedings or to advance the appeal for over one and a half years. The court held that the failure to attend...
Source-derived case information.
- Citation
- [2022] KEHC 1660 (KLR)
- Parties
- Appellant: China Wuyi Ltd; Respondent: Margaret Wambui Waweru (Suing as legal representative of the estate of Paul Cheruiyot Deceased)
- Court
- High Court
- Court Station
- High Court at Kericho
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 8 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- application for reinstatement of appeal dismissed
- Judges
- AN Ongeri
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Right to Be Heard, Procedural Technicalities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
China Wuyi Ltd
Appellant
Margaret Wambui Waweru (Suing as legal representative of the estate of Paul Cheruiyot Deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal should be reinstated after dismissal for want of prosecution.
- 2 Whether the appellant demonstrated sufficient cause for non-attendance and failure to prosecute the appeal.
- 3 Whether procedural technicalities should bar the appellant from being heard on merit.
Ratio Decidendi
The court found that the appellant had not filed a record of appeal nor demonstrated any real intention to prosecute the appeal since its dismissal. There was no evidence of steps taken to obtain lower court proceedings or to advance the appeal for over one and a half years. The court held that the failure to attend the hearing and subsequent inaction were not adequately explained and did not amount to sufficient cause for reinstatement. The court emphasized that while procedural technicalities should not bar substantive justice, parties must show diligence and a genuine desire to prosecute their cases. In the absence of such demonstration, the application for reinstatement lacked merit...
Court Disposition
application for reinstatement of appeal dismissed
Orders
- The application dated 21/7/2021 seeking reinstatement of the appeal is dismissed.
- No orders as to costs.
Full Case Text
Judgment text and source record
32 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KERICHO
CIVIL APPEAL NO.8 OF 2020
CHINA WUYI LTD.......................................................................................APPELLANT
VERSUS
MARGARET WAMBUI WAWERU (Suing as legal representative of the estate of
PAUL CHERUIYOT DECEASED).........................................................RESPONDENT
RULING
1. The appeal herein was dismissed for want of prosecution following an application filed by the Respondent dated 24/5/2021 which Application was not opposed by the Appellant/Respondent.
2. The Appellant subsequently filed an application dated 21/7/2021 seeking reinstatement of the appeal.
3. The parties filed written submission in the Application dated 21/7/2021 which I have duly considered.
4. The Appellant submitted that although the appeal was dismissed for non-attendance, the failure to attend the hearing of the application was not intentional as the hearing had not been diarized by the person in charge.
5. The Appellant also submitted that the non-attendance by the applicant was not so as to obstruct or delay justice, but that the failure to attend was a procedural technicality and the applicant should therefore not be denied a hearing due to procedural technicalities.
6. The appellant further submitted that the right to a hearing has been protected under the Constitution of Kenya, 2010 and that the appellant’s appeal should be accorded a chance to be heard on merit, as the appellant will suffer loss if the appeal is not heard inter-parties.
7. The appellant relied on the following cases:
(a) BELINDA MURAI & OTHERS VERSUS AMOS WAINAINA (1978) KLR 278;
(b) HAM VERSUS SOS (2021) eKLR;
(c) D.T DOBIE & COMPANY KENYA LIMITED VERSUS JOSEPH MBARIA MUCHINA CA NO. 37 OF 1978;
(d) PHILIP CHEMWOLO & ANOTHER VERSUS AUGUSTINE KUBEDE (1982-88) KAR 103 AT 1040; and
(e) RICHARD NCARPI LEIYAGU VERSUS INDEPENDENT ELECTROL BOUNDARIES COMMISSION & ANOTHER (2013) eKLR.
8. The Respondent on the other hand submitted that the appellant’s application is only meant to deny her the fruits of her judgement, and that justice delayed is justice denied. The respondent also submitted that Article 159(2) (b) of the Constitution demands that Justice shall not be delayed.
9. The Respondent further submitted that although the Appellant had stated that he was keen on having the appeal heard he was unable to have the proceedings from the lower court, but that he has not demonstrated he had made any effort for a period of one and a half years to obtain those proceedings from the court and that the appellant has not demonstrated the reason for delay in executing the appeal.
10. The respondent relied on the following case:
(a) PETER KIPKURUI CHEMOIWO VERSUS CHEPSERGON ELDORET COURT OF APPEAL, CIVIL APPEAL NO. 58 OF 2018; AND
(b) SAVINGS AND LOANS LIMITED VERSUS SUSAN WANJIRU MURITU, NAIROBI MILIMANI HCCC 397 OF 2002.
11. I find that no record of appeal has been filed to date. After reinstating the appeal what next?
12. There is no evidence that the Appellant is desirous to prosecute this appeal.
13. The Application dated 21/7/2021 seeking reinstatement of the appeal herein lacks in merit and I accordingly dismiss it with no orders as to costs.
Delivered, dated and signed at Kericho this 4th day of March, 2022.
A. N. ONGERI
JUDGE