[2018] KEHC 1719 (KLR)
The court held that the failure to file a Notice of Change of Advocate, while a procedural requirement under the Civil Procedure Rules, is a technicality that can be regularised and does not warrant striking out the appeal, especially in light of Article 159 of the Constitution which outlaws undue regard to...
Source-derived case information.
- Citation
- [2018] KEHC 1719 (KLR)
- Parties
- Appellant: James Muange Musyoki; Respondent: East West Veg. Limited; Respondent: Charles Kimotho
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 364 of 2005
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed with conditions.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Change of Advocate, Technicalities in Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Muange Musyoki
Appellant
East West Veg. Limited
Respondent
Charles Kimotho
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution should be set aside and the appeal reinstated.
- 2 Whether failure to file a Notice of Change of Advocate is fatal to the application.
- 3 Whether the omission by counsel should be visited upon the appellant.
Ratio Decidendi
The court held that the failure to file a Notice of Change of Advocate, while a procedural requirement under the Civil Procedure Rules, is a technicality that can be regularised and does not warrant striking out the appeal, especially in light of Article 159 of the Constitution which outlaws undue regard to technicalities. The court further found that the reasons for the appellant's counsel's absence, though not strong, should not be visited upon the appellant. The dismissal order was therefore set aside on condition that the appellant pays all costs occasioned to the respondents thus far and prosecutes the appeal within 120 days, failing which the appeal would stand dismissed without...
Court Disposition
Application allowed with conditions.
Orders
- The dismissal of the appeal for want of prosecution is set aside.
- The appeal is reinstated.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 364 OF 2005
JAMES MUANGE MUSYOKI......................................APPELLANT
VERSUS
EAST WEST VEG. LIMITED.............................1ST RESPONDENT
CHARLES KIMOTHO........................................2ND RESPONDENT
(Being an Appeal from the Ruling of the Hon. P. Gichohi (Mrs) in objecting proceedings in Civil Case No. 768 of 2004 in the Chief Magistrate’s Court in Nairobi given on the 17th of May 2005)
RULING
There is an application on record dated 18th October, 2016 seeking an order that the dismissal of the appeal for want of prosecution on 24th March, 2015 be set aside and the appeal be reinstated. The application is opposed and there is a replying affidavit sworn by counsel for the respondent and also a Notice of Preliminary Objection challenging the capacity of the appellant’s advocate because it is said, he had no authority to file the application. It is observed there is no Notice of Change filed as required under Order 9 Rule 5 of the Civil Procedure Rules.
I have considered the rival affidavits and the submissions filed herein. I have related the said submissions to the substratum of the main suit leading to the present appeal. My first observation is that notwithstanding the provisions of the Civil Procedure Rules, I cannot strike out the appeal just because counsel has not filed a Notice of Change of Advocate. This is a step that can be regularised, and in any case that is a technicality that has been outlawed by the Constitution. Further, no prejudice may be occasioned to the respondents by that omission.
Counsel for the appellant has explained the reasons for his absence on the date the appeal was dismissed and although the reasons may appear flimsy, I am persuaded such an omission should not be visited upon the appellant. I am prepared to reluctantly set aside the dismissal order, on condition that the appellant pays all the costs occasioned to the respondents this far which costs shall be agreed and if not, be subjected to taxation. Further, the appellant shall prosecute the appeal within 120 days from the date of this ruling. In default of the above conditions the appeal shall stand dismissed without any reference to the court.
Dated, signed and delivered at Nairobi this 19th day of December, 2018.
A. MBOGHOLI MSAGHA
JUDGE