[2017] KEHC 6827 (KLR)
The court found that the dismissal of the appeal was irregular because no directions had been given under Order 42 Rule 13 and no notice had been issued to the parties before the dismissal, as required by the Civil Procedure Rules. The absence of these procedural steps justified setting aside the dismissal order....
Source-derived case information.
- Citation
- [2017] KEHC 6827 (KLR)
- Parties
- Appellant: Luke King’are Ndung’u; Appellant: Cleon Evans Odour; Respondent: James Maina Mutura
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 67 of 2010
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed; dismissal order lifted; appeal reinstated.
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal of Appeal, Reinstatement of Appeal, Court Discretion, Notice Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Luke King’are Ndung’u
Appellant
Cleon Evans Odour
Appellant
James Maina Mutura
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal under Order 42 Rule 35(2) was proper in the absence of directions and notice to parties.
- 2 Whether the order of dismissal should be set aside and the appeal reinstated.
Ratio Decidendi
The court found that the dismissal of the appeal was irregular because no directions had been given under Order 42 Rule 13 and no notice had been issued to the parties before the dismissal, as required by the Civil Procedure Rules. The absence of these procedural steps justified setting aside the dismissal order. The court further held that no prejudice would be occasioned to the respondent by reinstating the appeal. Exercising its discretion under Section 3A of the Civil Procedure Act, the court allowed the application, lifted the dismissal order, and reinstated the appeal.
Court Disposition
Application allowed; dismissal order lifted; appeal reinstated.
Orders
- The order made on 6th June, 2016 is hereby lifted and the appeal reinstated.
- Directions shall be taken within 30 days from the date of this ruling.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 67 OF 2010
LUKE KING’ARE NDUNG’U ……………...............1ST APPELLANT
CLEON EVANS ODOUR …………………......….2ND APPELLANT
VERSUS
JAMES MAINA MUTURA ………………….............RESPODNENT
RULING
On 6th June, 2016 Njuguna J made an order dismissing this appeal under Order 42 Rule 35 (2) of the Civil Procedure Rules. The appellant subsequently knew about the order and filed an application by way of Notice of Motion dated 1st September, 2016 to set aside the said dismissal order. The application is opposed and both counsel have filed submissions.
My perusal of the record shows that a record of appeal was filed on 2nd April, 2014. Thereafter no steps were taken to facilitate the hearing of the appeal. It is also clear from the record that no directions were ever given under rule 13 of the same order. This duty was supposed to have been performed by a Judge in chambers at the instance of the appellant.
The order for dismissal under Order 42 Rule 35 (2) which was given in this appeal can only be made after the said directions have been given. Further, there is a duty bestowed upon the registrar to give notice to the parties before the appeal is placed before a Judge for dismissal.
The record before me does not contain any notice to that effect and that in itself would justify the lifting of the dismissal order. I have also considered whether or not any prejudice would be occasioned to the respondent if the application is allowed. Going by the submissions on record and my observations above, I see no prejudice at all.
It is the duty of the court to do justice to both parties and notwithstanding the delay in prosecuting the appeal, I am inclined to invoke the discretion of the court under Section 3A of the Civil Procedure Act and allow the application.
Accordingly, the order made on 6th June, 2016 is hereby lifted and the appeal reinstated. Directions shall be taken within 30 days from the date of this ruling and since this is an old appeal, the hearing date shall be taken in the registry on priority. Each party shall bear their own costs.
Dated, signed and delivered at Nairobi this 28th Day of March, 2017.
A. MBOGHOLI MSAGHA
JUDGE