[2005] KECA 198 (KLR)
The Court of Appeal held that the Civil Procedure Rules do not provide for the reinstatement of an appeal dismissed for want of prosecution under Order XLI Rule 31. The only provision for re-admission of an appeal is where dismissal occurs due to non-attendance at the hearing, as per Order XLI Rule 16. Since the...
Source-derived case information.
- Citation
- [2005] KECA 198 (KLR)
- Parties
- Appellant: John Njathi Mwangi; Respondent: Njathi Njoroge; Respondent: Ruthi Waithira; Respondent: Njoki Kariuki
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 292 of 2002
- Procedural Posture
- Civil Appeal / Judgment on Appeal Against Dismissal of Application for Reinstatement of Appeal
- Outcome
- appeal struck out as incompetent
- Judges
- AM Githinji, J Wakiaga
- Legal Topics
- Reinstatement of Appeal, Want of Prosecution, Distribution of Estate, Jurisdiction of Court
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Njathi Mwangi
Appellant
Njathi Njoroge
Respondent
Ruthi Waithira
Respondent
Njoki Kariuki
Respondent
Procedural Posture
Civil Appeal / Judgment on Appeal Against Dismissal of Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appellant had a legal right to apply for reinstatement of an appeal dismissed for want of prosecution under Order XLI Rule 31 Civil Procedure Rules.
- 2 Whether the superior court had jurisdiction to entertain the application for reinstatement of the dismissed appeal.
- 3 Whether the order dismissing the application for reinstatement was valid.
Ratio Decidendi
The Court of Appeal held that the Civil Procedure Rules do not provide for the reinstatement of an appeal dismissed for want of prosecution under Order XLI Rule 31. The only provision for re-admission of an appeal is where dismissal occurs due to non-attendance at the hearing, as per Order XLI Rule 16. Since the appellant's application for reinstatement was not grounded in any legal provision, the High Court lacked jurisdiction to entertain it. Consequently, the order dismissing the application for reinstatement was null and void, and the appeal itself was incompetent. The Court therefore struck out the appeal with costs to the respondents.
Court Disposition
appeal struck out as incompetent
Orders
- The appeal is struck out with costs to the respondents.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL AT NAIROBI (CORAM: TUNOI, GITHINJI & WAKI, JJ.A.) CIVIL APPEAL 292 OF 2002
BETWEEN
JOHN NJATHI MWANGI …….......………………………………………. APPELLANT
AND
NJATHI NJOROGE
RUTHI WAITHIRA
NJOKI KARIUKI ………...……………………………..…………… RESPONDENTS
(Appeal from the Ruling and Order of the High Court of Kenya at Nairobi (Aganyanya J) dated 24th June, 2002 in H.C.C.C. NO. 270 OF 1994) ******************
JUDGMENT OF THE COURT
This is an appeal from the ruling of the superior court (Aganyanya J) dated 11th June, 2002 wherein the learned Judge dismissed the appellant’s application for the reinstatement of the High Court Civil Appeal No. 270 of 1994which appeal was dismissed by the superior court on 6th August, 2002 for want of prosecution under Order XLI Rule 31 (2) Civil Procedure Rules.
The appeal which was dismissed by the superior court was against the order of the Resident Magistrate, Thika, referring the dispute on the distribution of the estate of Rachel Muthoni Njathi to the District Officer (DO) and elders for determination and the subsequent order dismissing the application to set aside the decision of the D.O. and the elders.
The appellant is the son of Miriam Wairimu who was the daughter of Rachel Muthoni Njathi who died intestate. She was survived by Wanjiru Njoroge (deceased) – mother of Njathi Njoroge (1st respondent); Ruth Waithera (2nd respondent) and Njoki Kariuki (3rd respondent). The appellant claimed to be the sole beneficiary of the estate of his grandmother Rachel Muthoni Njathi comprising of land – Land Title No. Loc. 3/Kariua/483. It appears however, that the D.O. and the elders awarded the appellant 1/3 share of the land and two – thirds share to the three respondents equally. The dismissed appeal was essentially against that distribution.
The dismissed appeal was filed on 14th September, 1994. It was dismissed on 6th August, 2002 eight years later for want of prosecution. The application for the reinstatement of the dismissed appeal was filed on 17th May, 2002.
The appellant did not show under what law the application for reinstatement of the appeal was made. This appeal is against the order of the superior court dated 11th June, 2002 dismissing the application for the reinstatement of the appeal.
By Order XLII 1(1) (z) Civil Procedure Rules, an appeal lies as of right against the dismissal of an appeal under Order XLI Rule 31. However, Order XLI does not provide for an application for the reinstatement of an appeal dismissed for want of prosecution under Order XLI Rule 31. The rules only provide for re – admission of an appeal dismissed in of default attendance on the hearing date (see Order XLI Rule 16). The appellant did not therefore have a legal right to apply for re – instatement of the dismissed appeal.
It follows that the application for reinstatement which was dismissed by the superior court was incompetent and that the order appealed from was made without jurisdiction. The order is therefore null and void. As no legal right of the appellant was infringed by dismissal of the appeal, this appeal is incompetent and is struck out with costs to the respondents.
Dated and delivered at Nairobi this 1st day of July, 2005.
P. K. TUNOI
………………………..
JUDGE OF APPEAL
E. M. GITHINJI
………………………….
JUDGE OF APPEAL
P. N. WAKI
………………………….
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR