[2018] KEHC 4941 (KLR)
The court found that the applicant's explanation for the delay, namely the alleged loss of the file at the registry, was not credible given the respondent's evidence that the file was available. The court characterized the applicant's conduct as indolent, noting there was no reason for failing to check the registry....
Source-derived case information.
- Citation
- [2018] KEHC 4941 (KLR)
- Parties
- Appellant: Jennifer Naliaka Hassan; Respondent: ADC (Olingatogo Farm); Defendant: George Barasa
- Court
- High Court
- Court Station
- High Court at Kitale
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 13 of 2014
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application allowed; dismissal set aside; appeal reinstated with conditions.
- Judges
- HK Chemitei
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Suit, Court Registry Practice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Jennifer Naliaka Hassan
Appellant
ADC (Olingatogo Farm)
Respondent
George Barasa
Defendant
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution should be set aside and the appeal reinstated.
- 2 Whether the applicant's explanation for delay due to alleged loss of file at the registry is sufficient.
Ratio Decidendi
The court found that the applicant's explanation for the delay, namely the alleged loss of the file at the registry, was not credible given the respondent's evidence that the file was available. The court characterized the applicant's conduct as indolent, noting there was no reason for failing to check the registry. However, since the dismissal was done suo moto by the court and not on the respondent's application, the court exercised its discretion to avoid driving the applicant from the seat of justice. The application to set aside the dismissal was allowed, but the applicant was directed to process the appeal within 30 days, and costs of the application were awarded to the respondent.
Court Disposition
Application allowed; dismissal set aside; appeal reinstated with conditions.
Orders
- The dismissal order made on 20/3/2017 is set aside.
- The appeal is reinstated and must be processed within 30 days from the date of the ruling.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KITALE
CIVIL APPEAL NO. 13 OF 2014
(Being an appeal arising from Kitale CMCC No. 295 of 2011)
JENNIFER NALIAKA HASSAN...........................APPELLANT
VERSUS
ADC (OLINGATOGO FARM)......................1ST RESPONDENT
GEORGE BARASA..........................................2ND DEFENDANT
R U L I N G
1. The notice of motion dated 26/4/2017 prays that;
a) This court be pleased to set aside the orders made on 20/3/2017 dismissing suit for want of prosecution and that the same be reinstated for hearing on merit.
2. The affidavit of A.A. Andambi sworn on the even date in support of the said application blames the loss of the file at the registry for failure to prosecute the appeal. He has attached correspondences to the registry dated 2/3/2015 and 8/3/2016 to that effect.
3. Mr Kiarie Advocate for the Respondent vide his replying affidavit dated 29/5/2017 has attached two replies from the court to the applicants counsel showing that the file was available and that the same was not misplaced.
4. Having read the application herein, this is a case of pure indolence on the part of the applicant. There is no reason why he failed to check the court registry so as to ascertain that the file was available.
5. I would have dismissed the application as requested by the Respondents. The respondent should however not take much credit as the dismissal of the matter was done by this court suo moto. If indeed it desired to have the same dismissed it ought to have filed an application to that effect.
6. So as not to drive the applicant from the judgment sit I shall allow the application and order that the appeal be and is hereby processed within the next 30 days from the date herein.
7. The Respondent shall have the cost of this application.
Delivered, signed and dated at Kitale this 17th July 2018.
_________________
H.K. CHEMITEI
JUDGE
17/7/18
In the presence of;
Mfutu for the Respondent
No appearance for the Applicant
Kirong – Court Assistant
Ruling delivered in open court.