[2002] KEHC 969 (KLR)
The court found that while the reasons provided for counsel's absence were inadequate and not fully substantiated, the nature of the suit and the grounds of appeal warranted giving the appellant another opportunity. The court emphasized that the mistake of counsel should not be visited upon the client. Therefore,...
Source-derived case information.
- Citation
- [2002] KEHC 969 (KLR)
- Parties
- Appellant: Mohsein Mohammed Albeity; Respondent: Peter Mucheru Njuguna
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 4 of 2001
- Procedural Posture
- Civil Appeal / Application for Re Admission of Appeal After Dismissal for Want of Prosecution
- Outcome
- Appeal reinstated on condition; costs to respondent.
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohsein Mohammed Albeity
Appellant
Peter Mucheru Njuguna
Respondent
Procedural Posture
Civil Appeal / Application for Re Admission of Appeal After Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the appeal should be re-admitted after dismissal for want of prosecution.
- 2 Whether the reasons for non-attendance by the appellant's counsel constitute sufficient cause for reinstatement.
- 3 Whether the mistake of counsel should be visited upon the client.
Ratio Decidendi
The court found that while the reasons provided for counsel's absence were inadequate and not fully substantiated, the nature of the suit and the grounds of appeal warranted giving the appellant another opportunity. The court emphasized that the mistake of counsel should not be visited upon the client. Therefore, the appeal was reinstated on the condition that the appellant's counsel personally pays KES 5,000 to the respondent as costs before the appeal is set down for hearing. The costs of the application were awarded to the respondent.
Court Disposition
Appeal reinstated on condition; costs to respondent.
Orders
- The appeal is re-admitted on condition that Mr. Nyongesa personally pays KES 5,000 to the respondent as costs before the appeal is set down for hearing.
- Costs of this application shall be to the respondent.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 4 OF 2001
MOHSEIN MOHAMMED ALBEITY …………….APPELLANT
VERSUS
PETER MUCHERU NJUGUNA ……………….. RESPONDENT
R U L I N G
The Notice of Motion dated 10th July 2002 under the provisions of order 41 rule 16, order 50 rule 1 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act seeks an order re-admitting the Appeal herein which was dismissed for want of prosecution on 24th June 2002. It is supported by an affidavit sworn by counsel for applicant Mr. Nyongesa Wafula.
In his submissions Mr. Akanga who argued the application on behalf of Mr. Nyogesa stated that Mr. Nyongesa who was in court when the matter was first called out on 24th June 2002 had left the court premises to see a physician as he was suffering from an Asthmatic attack. Before leaving court he had instructed a counsel M/S Pauline Osino to hold his brief and explain to the court what had befallen him but the said M/S Osino failed to appear too.
In support he has further attached a note from PALMLAND Pharmarceutical Ltd saying Mr. Nyongesa was at that time purchasing medication for Asthmatic condition. There is no letter from a Doctor to proof he indeed attended a physician as stated in his affidavit.
Mr. Alando opposed the application on the grounds that there were no good reasons given and no proof either of Mr. Nyongesas sickness at material time.
I have carefully considered the reasons and agree with Mr. Alando that the reasons given are inadequate. However I have also considered the nature of the of the suit and the grounds of appeal raised and agree with Mr. Akanga that the applicant stands to loose should the appeal not be reinstated.
No doubt the mistake of the counsel should not be visited upon the client and for that reason I will re-admit the appeal on condition that Mr. Nyongesa will personally pay costs of kshs.5,000/- to the Respondent as costs before the appeal is set down for hearing.
Costs of this application shall be to the Respondent.
Dated this 19th day of September 2002.
P.M. TUTUI
COMMISSIONER OF ASSIZE