[2023] KEHC 21717 (KLR)
The court found that the appeal was dismissed automatically due to the expiry of the 45-day period granted for prosecution. However, the court has discretion to reinstate such matters if it is in the interest of justice. The court considered that the record of appeal and original file were now available, and that...
Source-derived case information.
- Citation
- [2023] KEHC 21717 (KLR)
- Parties
- Appellant: Nairobi Serena Hotel; Respondent: Wycliff Makori Machuka; Respondent: The Hon. Attorney General
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 690 of 2017
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- Appeal reinstated and admitted for hearing.
- Judges
- AN Ongeri
- Legal Topics
- Reinstatement of Appeal, Dismissal for Want of Prosecution, Exercise of Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nairobi Serena Hotel
Appellant
Wycliff Makori Machuka
Respondent
The Hon. Attorney General
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the appeal should be reinstated for hearing after dismissal for want of prosecution.
- 2 Whether the appellant is entitled to an opportunity to be heard on merit.
Ratio Decidendi
The court found that the appeal was dismissed automatically due to the expiry of the 45-day period granted for prosecution. However, the court has discretion to reinstate such matters if it is in the interest of justice. The court considered that the record of appeal and original file were now available, and that denying the appellant an opportunity to prosecute the appeal would be prejudicial. The court exercised its discretion in favour of reinstatement, finding that the interests of justice required the appellant to be given a chance to be heard on the merits. The appeal was therefore reinstated and admitted for hearing before a single judge, with directions for the filing of...
Court Disposition
Appeal reinstated and admitted for hearing.
Orders
- The appeal is reinstated and admitted for hearing before a single judge.
- Each party to file written submissions within 21 days of the ruling date.
Full Case Text
Judgment text and source record
30 paragraphs
Nairobi Serena Hotel v Machuka & another (Civil Appeal 690 of 2017) [2023] KEHC 21717 (KLR) (Civ) (24 August 2023) (Ruling)
Neutral citation: [2023] KEHC 21717 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal 690 of 2017
AN Ongeri, J
August 24, 2023
Between
Nairobi Serena Hotel
Appellant
and
Wycliff Makori Machuka
1st Respondent
The Hon. Attorney General
2nd Respondent
Ruling
1. The application coming for consideration in this ruling is dated April 28, 2023 brought under the following provisions of Section 1A, 1B and 3A of the Civil Procedure Act and Order 17 rule 2 of the Civil Procedure Rulesseeking the following prayersi.That this application be certified urgent and be heard ex-parte at the first instance.ii.That this honourable court be pleased to issue an interim order for stay of execution against the judgment delivered on December 23, 2016 pending the hearing of this application, inter partes.iii.That the orders of this honourable court be pleased to set aside the orders made on April 20, 2023 dismissing the appellant’s suit and all other consequential orders thereto.iv.That this honourable court be pleased to reinstate the appellant/applicant’s suit.v.That costs of the application be in the cause.
2. The parties filed written submissions which I have duly considered.
3. The sole issue for determination is whether the appeal should be reinstated for hearing.
4. It is not in dispute that the appeal was automatically dismissed by effluxion of time.
5. Upon the expiry of the 45 days granted by the court the appeal lapsed.
6. The court has discretion to reinstate a matter which has been dismissed for want of prosecution.
7. In the case ofFM v EKW (2019) eKLR relied on and cited in the the case of Kenya Pipeline Company Limited Vs Mafuta Products Limited (2014) eKLR) and that ofShah Vs Mbogo (1967) EA 166 the court held as follows;“…. the discretion of the court must always be exercised judiciously with the sole intention of dispensing justice to both or all the parties. Each case must therefore be evaluated on its unique fact and circumstances. Among the factors to be considered is whether the Applicant will suffer any prejudice if denied an opportunity to be heard on merit.”
8. The Record of Appeal and original file are now available and I find that it is in the interest of justice that the appellant be given an opportunity to prosecute this appeal.
9. I reinstate the appeal and admit it for hearing before a single Judge.
10. Each party to file written submissions within 21 days of this date.
11. Mention on October 6, 2023 for a judgment date.
12. The appellant/applicant to pay the respondent thrown away costs of kshs 20,000 before October 6, 2023.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 24TH DAY OF AUGUST, 2023. ………….…………….A. N. ONGERIJUDGEIn the presence of:..........................for the Appellant.......................... for the 1st Respondent.......................... for the 2nd Respondent