[2025] KEHC 5519 (KLR)
The court found that the applicant was properly served electronically with the notice to show cause at the email address on record. The reasons for the original dismissal were rendered moot for the purposes of the application. The court also found that there was no error in the issuance of the dismissal order and no...
Source-derived case information.
- Citation
- [2025] KEHC 5519 (KLR)
- Parties
- Appellant: Gabriel Kibutu; Respondent: Jacob Yator Kipyakwai
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Judgment Date
- 29 April 2025
- Case Number
- Civil Appeal E016 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application dismissed with costs to the respondent
- Judges
- SM Mohochi
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Service of Process
- Source Language
- english
Source-derived case record
Summary, issues, holding and outcome
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Parties
Gabriel Kibutu
Appellant
Jacob Yator Kipyakwai
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the applicant was properly served with the notice to show cause before dismissal of the appeal.
- 2 Whether there are sufficient reasons to set aside the order of dismissal for want of prosecution.
- 3 Whether the delay in filing the application to set aside dismissal is justified.
Ratio Decidendi
The court found that the applicant was properly served electronically with the notice to show cause at the email address on record. The reasons for the original dismissal were rendered moot for the purposes of the application. The court also found that there was no error in the issuance of the dismissal order and no sufficient reason had been advanced to warrant setting aside the order. Furthermore, the applicant failed to justify the eight-month delay in filing the application. Consequently, the court held that there was no merit in the application to set aside the dismissal for want of prosecution and dismissed the application with costs to the respondent.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 5th March, 2024 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
21 paragraphs
Kibutu v Kipyakwai (Civil Appeal E016 of 2021) [2025] KEHC 5519 (KLR) (29 April 2025) (Ruling)
Neutral citation: [2025] KEHC 5519 (KLR)
Republic of Kenya
In the High Court at Nakuru
Civil Appeal E016 of 2021
SM Mohochi, J
April 29, 2025
Between
Gabriel Kibutu
Appellant
and
Jacob Yator Kipyakwai
Respondent
Ruling
1. This Court has considered the Application dated 5th March, 2024 for setting aside the order of dismissal of appeal for want of prosecution.
2. The Court has equally considered the sole ground relied upon of not having been served with the notice to show cause by the Deputy Registrar. I have equally considered the Response filed in opposition.
3. I am unable to find any merit in this application for the following reasons:i.The applicants were duly served electronically on the 6th April 2023 and the email address used is xxxxs@gmail.com the same address on record in this appeal.ii.Any reasons giving rise to the dismissal of the appeal on 4th July, 2023 are moot for purposes of this application.iii.The order of dismissal was not properly issued and there is no errors warranting this Court’s interference.iv.I equally fail to locate any other sufficient reason that would warrant setting aside the order for dismissal of the appeal.v.Finally, the applicant has not in any way attempted to justify the eight (8) month delay in filing this application.
4. Order 10 rule 11 provided for the parameters in which the Court may set aside orders for such terms as may be just.
5. The Court further notes that the application dated 5th March, 2024 was filed on 24th July, 2024.
6. This Court finds no merit in the application dated March 5, 2024 is thus devoid of merit and the same is dismissed with costs to the Respondent.It is so ordered.
RULING READ, SIGNED AND DELIVERED AT NAKURU THIS 29TH DAY OF APRIL, 2025MOHOCHI. S. M.JUDGE