[2018] KEHC 10223 (KLR)
The court found that there was no evidence on record that the applicant was served with the Notice to Show Cause prior to the dismissal of the appeal for want of prosecution. Additionally, the lower court record was not available to clarify the issue. Although the applicant failed to demonstrate what steps were...
Source-derived case information.
- Citation
- [2018] KEHC 10223 (KLR)
- Parties
- Applicant: Christopher Juma; Respondent: Blazing Saddles Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 81 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application allowed with conditions
- Judges
- BT Jaden
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Service of Notice, Delay in Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Christopher Juma
Applicant
Blazing Saddles Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the order dismissing the appeal for want of prosecution should be set aside.
- 2 Whether the applicant was properly served with the Notice to Show Cause prior to dismissal.
- 3 Whether the delay in prosecuting the appeal was adequately explained.
Ratio Decidendi
The court found that there was no evidence on record that the applicant was served with the Notice to Show Cause prior to the dismissal of the appeal for want of prosecution. Additionally, the lower court record was not available to clarify the issue. Although the applicant failed to demonstrate what steps were taken during the eight-year delay, the absence of proof of service of the Notice to Show Cause was a significant procedural lapse. Consequently, the court exercised its discretion to allow the application to set aside the dismissal and reinstate the appeal, subject to the condition that the record of appeal be compiled, served, and the appeal listed for directions within 90 days,...
Court Disposition
application allowed with conditions
Orders
- The order dismissing the appeal is set aside.
- The appeal is reinstated on condition that the record of appeal is compiled, served, and the appeal listed for directions within 90 days from the date of the ruling.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 81 OF 2010
CHRISTOPHER JUMA...............................................APPLICANT
VERSUS
BLAZING SADDLES LIMITED............................RESPONDENT
RULING
1. The application dated 26th March, 2018 seeks the following orders:
1. That the Honourable court be pleased to set aside the order made on 16th June, 2016 dismissing the Applicant’s appeal.
2. That the Honourable court be pleased to reinstate the Applicant’s appeal.
3. That the costs of the application be provided for.
2. It is stated in the grounds and affidavit in support of the application that the appeal herein was dismissed on 16th June, 2016 for want of prosecution. It is contended that the Applicant was not served with the Notice to Show Cause and was not aware that the appeal was coming up for dismissal. That the Applicant became aware of the dismissal in March 2018 while he was following up on the typed proceedings in the lower court. The delay in prosecuting the appeal is blamed on the failure by the lower court to supply copies of the proceedings and judgment.
3. The application is opposed. It is stated in the replying affidavit that the Applicant has failed to explain the delay of over eight (8) years in prosecuting the appeal. That the appeal has no chances of success and the dismissal ought to be upheld.
4. I have considered the application, the response to the same and the submissions made by the respective counsels for the parties.
5. The appeal herein was filed on 12th March, 2010. Although the letter dated 4th March, 2010 requesting for typed proceedings has been exhibited herein, the same bears no received stamp by the court. The next letter is dated 7th March, 2018, about eight years later. By then the appeal had already been dismissed. It has not been demonstrated what steps the Applicant took in the intervening period.
6. A perusal of the court file has not yielded the copy of the Notice to Show Cause that was served on the Applicant. The lower court record has also not been availed. Consequently, I allow the application on the condition that the Record of Appeal is compiled and served and appeal listed for directions within 90 days from date hereof. In default the appeal to stand dismissed.
Date, signed and delivered at Nairobi this 2nd day of Oct., 2018
B. THURANIRA JADEN
JUDGE