[2021] KEHC 982 (KLR)
The court found that it was not functus officio because the appeal had not been heard on its merits. The explanation provided by the applicant for the delay in filing the Record of Appeal—namely, the delay in obtaining lower court proceedings—was accepted as sufficient cause. Consequently, the court exercised its...
Source-derived case information.
- Citation
- [2021] KEHC 982 (KLR)
- Parties
- Appellant: Eric Achanga; Respondent: James Mincha Ndubi
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 106 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- Application allowed; appeal and stay of execution reinstated.
- Judges
- REA Ougo
- Legal Topics
- Reinstatement of Appeal, Record of Appeal Filing, Functus Officio, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eric Achanga
Appellant
James Mincha Ndubi
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal should be reinstated after dismissal for failure to file the Record of Appeal within the stipulated period.
- 2 Whether the court is functus officio in the circumstances.
- 3 Whether the stay of execution orders should be reinstated.
Ratio Decidendi
The court found that it was not functus officio because the appeal had not been heard on its merits. The explanation provided by the applicant for the delay in filing the Record of Appeal—namely, the delay in obtaining lower court proceedings—was accepted as sufficient cause. Consequently, the court exercised its discretion to reinstate the appeal and the stay of execution orders, emphasizing the need to allow the matter to be determined on its merits.
Court Disposition
Application allowed; appeal and stay of execution reinstated.
Orders
- The appeal HCCA No. 106 of 2021 is reinstated for hearing and determination.
- The appellant shall file and serve a complete Record of Appeal within 45 days from the date of the ruling.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. 106 OF 2021
ERIC ACHANGA .........................................................APPELLANT
VERSUS
JAMES MINCHA NDUBI ....................................... RESPONDENT
RULING
1. Having considered the application dated the 6th December 2021, the rival affidavits, the oral submissions and the proceedings that led to the dismissal of the appeal, I find as follows; the appeal was dismissed because the applicant failed to file the Record of Appeal within the period the court gave him. Counsel for the applicant explained that they sought proceedings from the lower court but there was a delay in getting the said proceedings.
2. The Respondent has argued that this court is functus officio. The appeal has not been heard and therefore this court is not functus officio.
3. I will accept the explanation given by the applicant as detailed in his affidavit in support of the application. I therefore grant the following orders;
(1) The appeal being HCCA No. 106 of 2021 Erick Achanga vs James Mincha Ndubi is hereby reinstated for hearing and determination.
(2) The appellant shall file and serve complete Record of Appeal within 45 days from today’s date.
(3) The stay of execution orders issued on the 4/10/2021 are reinstated and shall be in force until the determination of the appeal.
(4) Mention on the 24/2/2022 for directions.
DATED, SIGNED AND DELIVERED AT KISII THIS 17TH DAY OF DECEMBER 2021.
R.E. OUGO
JUDGE
In the presence of:
Mr. Ndolo For the Applicant
Miss Moguche For the Respondent
Kelvin Isindu Court Assistant