[2018] KEHC 5891 (KLR)
The court found that the appellants provided a plausible explanation for their lateness, having arrived late in response to the notice and filing the record of appeal on the same day. The application to set aside the dismissal was filed promptly the next day. The court determined that the respondent would not suffer...
Source-derived case information.
- Citation
- [2018] KEHC 5891 (KLR)
- Parties
- Appellant: Eunice Auma Odera; Appellant: Peter Odera Wadeya; Appellant: Jairus Ogola Owiti; Appellant: Evans Omondi Odhiambo; Appellant: Paul Miseh; Respondent: Migori Teachers’ Savings & Credit Co-operative Society Limited
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 200 of 2011
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Notice of Motion dated 25th September 2017 allowed; appeal reinstated for hearing.
- Legal Topics
- Setting Aside Orders, Reinstatement of Appeal, Costs Award
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eunice Auma Odera
Appellant
Peter Odera Wadeya
Appellant
Jairus Ogola Owiti
Appellant
Evans Omondi Odhiambo
Appellant
Paul Miseh
Appellant
Migori Teachers’ Savings & Credit Co-operative Society 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 should be set aside.
- 2 Whether the appellants have provided a plausible explanation for their lateness.
- 3 Whether the respondent will suffer prejudice if the appeal is reinstated.
Ratio Decidendi
The court found that the appellants provided a plausible explanation for their lateness, having arrived late in response to the notice and filing the record of appeal on the same day. The application to set aside the dismissal was filed promptly the next day. The court determined that the respondent would not suffer any prejudice that could not be compensated by an award of costs. Therefore, the interests of justice required that the dismissal order be set aside and the appeal reinstated for hearing, subject to the appellants paying costs to the respondent.
Court Disposition
Notice of Motion dated 25th September 2017 allowed; appeal reinstated for hearing.
Orders
- The Notice of Motion dated 25th September 2017 is allowed.
- The appeal is reinstated for hearing.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISII
CIVIL APPEAL NO. 200 OF 2011
BETWEEN
EUNICE AUMA ODERA.............................1ST APPELLANT
PETER ODERA WADEYA..........................2ND APPELLANT
JAIRUS OGOLA OWITI............................3RD APPELLANT
EVANS OMONDI ODHIAMBO..................4TH APPELLANT
PAUL MISEH................................................5TH APPELLANT
AND
MIGORI TEACHERS’ SAVINGS & CREDIT
CO-OPERATIVE SOCIETY LIMITED..........RESPONDENT
(Being an Appeal from the Judgment and Decree of the Honourable Chairman
Co-operativeTribunal Mrs. A.N Ongeri sitting at Nairobi on the 13th day of
September 2011in Nairobi Co-operative Tribunal Appeal No. 7 of 2010)
RULING
The application before me is the Notice of Motion dated 25th September 2017 seeking to set aside the dismissal order made on 25th September 2017.
I have considered the grounds and I am inclined to allow the application as the explanation given by the appellants is plausible. They state that in response to the notice they arrived late and that it is on the same day they filed the record of appeal. The Notice of Motion to set aside was filed on the next day. I do not think that the respondent will suffer prejudice as this will be resolved by an award of costs.
I therefore allow the Notice of Motion dated 25th September 2017 and reinstate the appeal for hearing. The appellants shall pay the respondent cots of Kshs.10,000/= within 14 days.
Mention on 17. 07. 2018 before Court No.1 for directions.
D.S MAJANJA , J
26/6/2018
Court: Ruling read and delivered in open court.
D.S MAJANJA, J
26/6/2018