[2021] KEHC 9742 (KLR)

[2021] KEHC 9742 (KLR)

The court found that the dismissal of the appeal for want of prosecution was made during a mention, a stage at which substantive orders should not be issued unless parties have expressly consented. The record did not indicate any such consent from the parties. The court was persuaded that this constituted an error apparent on the face of the record, justifying review and setting aside of the dismissal order. The court further noted that the appellant had not exhausted the 120-day period granted to list the appeal for hearing. Accordingly, the court allowed the application, set aside the dismissal order, and reinstated the appeal.

Citation
[2021] KEHC 9742 (KLR)
Parties
Appellant: M/S Master Power Systems Limited; Respondent: Public Procurement Administrative Review Board; Respondent: M/S Central Electricals International Limited; Respondent: Glama Electrical & Mechanical Co. Ltd.
Court
High Court
Court Station
High Court at Nairobi (Milimani Law Courts)
Jurisdiction
Kenya
Judgment Date
8 January 2021
Case Number
Civil Appeal 45 of 2015
Procedural Posture
Civil Appeal / Ruling on Application to Review and Set Aside Dismissal Order
Outcome
application allowed; dismissal order set aside; appeal reinstated
Judges
JK Sergon
Legal Topics
Dismissal for Want of Prosecution, Review of Court Orders, Error Apparent on Record
Source Language
English
Civil Procedure Dismissal for Want of Prosecution Review of Court Orders Error Apparent on Record

Case Brief

Summary, issues, holding and outcome

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Parties

M/S Master Power Systems Limited

Appellant

Public Procurement Administrative Review Board

Respondent

M/S Central Electricals International Limited

Respondent

Glama Electrical & Mechanical Co. Ltd.

Respondent

Procedural Posture

Civil Appeal / Ruling on Application to Review and Set Aside Dismissal Order

Legal Issues

  1. 1 Whether the dismissal of the appeal for want of prosecution during a mention was proper.
  2. 2 Whether there was an error apparent on the face of the record justifying review and setting aside of the dismissal order.
  3. 3 Whether the application to set aside the dismissal order was filed with inordinate delay.

Ratio Decidendi

The court found that the dismissal of the appeal for want of prosecution was made during a mention, a stage at which substantive orders should not be issued unless parties have expressly consented. The record did not indicate any such consent from the parties. The court was persuaded that this constituted an error apparent on the face of the record, justifying review and setting aside of the dismissal order. The court further noted that the appellant had not exhausted the 120-day period granted to list the appeal for hearing. Accordingly, the court allowed the application, set aside the dismissal order, and reinstated the appeal.

Court Disposition

application allowed; dismissal order set aside; appeal reinstated

Orders

  • The motion dated 19.6.2020 is allowed.
  • The order dismissing the appeal issued on 30.5.2019 is set aside.