[2017] KEHC 1256 (KLR)
The court found that the appeal had not been admitted to hearing at the time of dismissal and that the appellant had taken necessary steps to prepare the appeal for hearing. The court accepted the appellant's explanation for non-attendance and noted that the respondent did not controvert the appellant's averments....
Source-derived case information.
- Citation
- [2017] KEHC 1256 (KLR)
- Parties
- Appellant: Express Kenya Limited; Respondent: Autoxpress Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 278 of 2011
- Procedural Posture
- Civil Appeal / Application for Reinstatement After Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal order set aside; appeal reinstated.
- Judges
- JK Sergon
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Order 42 Rule 35, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Express Kenya Limited
Appellant
Autoxpress Limited
Respondent
Procedural Posture
Civil Appeal / Application for Reinstatement After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the court should set aside the dismissal order for want of prosecution and reinstate the appeal.
- 2 Whether the court has inherent power to reinstate an appeal dismissed under Order 42 rule 35 of the Civil Procedure Rules.
Ratio Decidendi
The court found that the appeal had not been admitted to hearing at the time of dismissal and that the appellant had taken necessary steps to prepare the appeal for hearing. The court accepted the appellant's explanation for non-attendance and noted that the respondent did not controvert the appellant's averments. The court held that, despite the silence of Order 42 rule 35 on reinstatement, it retains inherent power to set aside a dismissal order and reinstate the appeal in the interests of justice. Accordingly, the court allowed the application and reinstated the appeal.
Court Disposition
Application allowed; dismissal order set aside; appeal reinstated.
Orders
- The motion dated 28.6.2016 is allowed in terms of prayers 1 and 2.
- Costs to abide the outcome of the appeal.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 278 OF 2011
EXPRESS KENYA LIMITED ...............................................APPELLANT
- V E R S U S -
AUTOXPRESS LIMITED.................................................. RESPONDENT
RULING
1) On 7th June 2016, the Hon. Lady Justice Thuranira, dismissed this appeal for want of prosecution. Express Kenya Ltd, the appellant herein has now taken out the motion dated 28. 6.2016 in which it sought for interalia the dismissal order to be set aside and for the appeal to be reinstated. The motion is supported by the affidavit of Caroline Serem.
2) When served with the motion Autoxpress Ltd, the respondent herein, filed the replying affidavit of Ken Muchiri to oppose the application. When the motion came up for intrpartes hearing, learned counsels recorded a consent order to have the motion disposed of by written submission.
3) I have considered the grounds stated on the face of the motion together with facts deponed in the affidavit filed in support and against the applicant. I have also considered the rival written submissions. It is the submission of the appellant that the appeal was erroneously dismissed for want of prosecution yet the same had not been admitted to hearing. It is also pointed out that the appellant had taken all reasonable steps to have the appeal ready for hearing save that the appeal could not be listed for hearing before being admitted to hearing. The appellant’s advocate admitted that she as aware of the fact that the appeal had been listed for the hearing of a notice to show cause but she was unable to reach court in time to argue against the notice for dismissal because she was held up in another court.
4) The respondent is of the view that the appeal having been dismissed under Order 42 rule 35 of the Civil Procedure Rules, there is no room for reinstatement of a dismissed appeal. The respondent stated that the appellant was indolent hence it should not benefit from the discretion of this court.
5) After a careful consideration of the rival arguments, there is no dispute that the appeal was dismissed for want of prosecution in the absence of the parties. It is averred in the affidavit of Caroline Serem that the appeal was erroneously dismissed on the basis that the same had not been fixed for hearing yet the appeal had not been admitted to hearing. It is clear from the record that this appeal has not actually been admitted to hearing. M/s Serem avers that she could have actually explained to the trial judge that all the necessary steps had been taken to make the appeal ready for hearing but unfortunately she was held up in another court for a while and when she appeared before Lady Justice Thuranira she found the appeal had already been dismissed. The respondent did not controvert this vital averments.
6) I am convinced by the arguments put forward by the appellant that the dismissal order should be set aside.
7) Though the provisions of Order 42 rule 35 of the Civil Procedure Rules is silent as to whether or not an appeal which has been dismissed should be reinstated, I am of the humble view that the court retains its inherent power to make such an order.
8) In the end the motion dated 28. 6.2016 is allowed in terms of prayers 1 and 2 with costs abiding the outcome of the appeal.
Dated, Signed and Delivered in open court this 10th day of November, 2017.
J. K. SERGON
JUDGE
In the presence of:
........................................ for the Appellant
................................... for the Respondent