[2003] KEHC 58 (KLR)
The court found that the applicant failed to provide a satisfactory explanation for both the non-attendance at the hearing and the significant delay in filing the application for reinstatement. The applicant did not specify when he became aware of the dismissal, nor did he provide an affidavit from his previous...
Source-derived case information.
- Citation
- [2003] KEHC 58 (KLR)
- Parties
- Appellant: Eliud Nyaga Namu; Respondent: Ireri Mwarania
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 2 of 1999
- Procedural Posture
- Civil Appeal / Application for Reinstatement of Dismissed Appeal
- Outcome
- application dismissed with costs
- Judges
- EN Juma
- Legal Topics
- Reinstatement of Appeal, Dismissal for Nonattendance, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Nyaga Namu
Appellant
Ireri Mwarania
Respondent
Procedural Posture
Civil Appeal / Application for Reinstatement of Dismissed Appeal
Legal Issues
- 1 Whether the appeal should be reinstated after dismissal for non-attendance.
- 2 Whether the applicant and his advocate were properly served with the hearing notice.
- 3 Whether the delay in filing the application for reinstatement is justified.
Ratio Decidendi
The court found that the applicant failed to provide a satisfactory explanation for both the non-attendance at the hearing and the significant delay in filing the application for reinstatement. The applicant did not specify when he became aware of the dismissal, nor did he provide an affidavit from his previous advocate to corroborate the claim of non-service. The court emphasized that advocates are expected to check the Cause List, particularly in Embu where the High Court sits only once a month. The lack of diligence and insufficient information led the court to conclude that this was not a proper case for granting the application. Accordingly, the application to reinstate the appeal...
Court Disposition
application dismissed with costs
Orders
- The application to reinstate the appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL NO. 2 OF 1999
ELIUD NYAGA NAMU ……………………………. PLAINTIFF
VERSUS
IRERI MWARANIA ………………………………… DEFENDANT
RULING
By an application dated 4th June 2002, the Applicant applied to this court to reinstate the appeal that was dismissed on 30th October 2000 for non-attendance. The application was supported by the affidavit of the Applicant in which he deponed that his then advocate on record was not served with the hearing notice and as such he and his advocate did not attend court on 30th October 2000 when his appeal was dismissed for nonattendance.
He however deponed that he went to the Registry and that is when he discovered that his appeal had been dismissed. He then instructed his present advocate to file the present application.
I take judicial notice that the High Court sits in Embu once a month and all the advocates are expected to check on the Cause List what cases are fixed for that week when the judge sits in Embu. For this reason alone, any conscientious advocate ought to have looked at the Cause List and known whether any of his cases have been listed for hearing. The appeal was dismissed on 30th October, 2000 and the Applicant conveniently failed to specify in his affidavit when he learnt that his appeal had been dismissed.
This application was filed in June 2002 over one and half years since the appeal was dismissed. The Applicant’s previous advocate has not filed any affidavit to support the allegation that he was not served with the hearing notice. Indeed the Applicant depones that service was by registered post.
He does not also depone as to when he instructed his advocate to file this application. He has been uneconomical with the information. I am satisfied that this is not a proper case to grant the application sought and the same is dismissed with costs.
Dated this ……………………day of ………………………2003.
J.V.O. JUMA
JUDGE