[2017] KEHC 5114 (KLR)
The High Court found that the dismissal of the appellant's suit for want of prosecution was irregular because no notice to show cause was issued as required by Order 17 Rule 2 of the Civil Procedure Rules. The subsequent applications to set aside the dismissal were not determined on their merits, and the...
Source-derived case information.
- Citation
- [2017] KEHC 5114 (KLR)
- Parties
- Appellant: Julius Mwaniki Kithokoi; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 519 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed; suit reinstated
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Res Judicata, Notice to Show Cause, Police Shooting Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Julius Mwaniki Kithokoi
Appellant
The Hon. Attorney General
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the dismissal of the appellant's suit for want of prosecution was proper in the absence of a notice to show cause.
- 2 Whether the subsequent applications to set aside the dismissal were properly dismissed on grounds of res judicata or technicalities.
- 3 Whether the appellant was denied a fair hearing.
Ratio Decidendi
The High Court found that the dismissal of the appellant's suit for want of prosecution was irregular because no notice to show cause was issued as required by Order 17 Rule 2 of the Civil Procedure Rules. The subsequent applications to set aside the dismissal were not determined on their merits, and the supplementary affidavit filed by the appellant was not considered by the lower court. The court held that the matter was not res judicata since the issues had not been canvassed or determined. The appellant was denied a fair hearing, amounting to an injustice. Consequently, the appeal was allowed, the dismissal order and all subsequent rulings were set aside, and the suit was reinstated...
Court Disposition
appeal allowed; suit reinstated
Orders
- The appeal is allowed.
- The dismissal order and all subsequent rulings are set aside.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 519 OF 2013
JULIUS MWANIKI KITHOKOI ……………..…… APPELLANT
VERSUS
THE HON. ATTORNEY GENERAL …………RESPONDENT
(Being an appeal from the ruling delivered by C.C. Kipkorir Ms, Resident Magistrate dated 6th May, 2013 in Nairobi Civil Case No. 6128 of 2004)
JUDGMENT
The appellant herein filed a case against the defendant following a shooting by the police which left him paralysed. At some stage the suit in the lower court was dismissed for what appears to be want of prosecution. He then lodged an application to set aside the dismissal order which application was also dismissed.
Another application followed, this time with two affidavits, one by the appellant and the other by his advocate. That application was once again dismissed because the advocate’s affidavit had not been commissioned. A supplementary affidavit had been filed which the court however, did not address itself to. Had that been done I do not believe the application would have been dismissed.
The dismissal of the first application did not address the merits thereof. The second application therefore could not attract the finding that the matter was res judicata. The issues had not been canvassed and no determination had been made. I also note that before the dismissal of the suit, no notice to show cause had been issued under Order 17 Rule 2 of the Civil Procedure Rules.
The appellant was driven out of the seat of judgment without a hearing. Injustice has been visited upon him. I am inclined to allow this appeal and set aside the dismissal order and all other rulings delivered thereafter. The lower court suit is hereby reinstated. The lower court file shall be remitted to the lower court for hearing and determination by a different magistrate of competent jurisdiction. As this is an old case, priority shall be given in allocating hearing dates. The costs shall be in the cause.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A. MBOGHOLI MSAGHA
JUDGE