[2001] KEHC 725 (KLR)
The court held that the applicant failed to state the grounds for review under Order 44 Rule 1 Civil Procedure Rules and did not make submissions thereunder. The application was therefore not properly before the court. Furthermore, the appeal had already stood dismissed by operation of the default clause due to...
Source-derived case information.
- Citation
- [2001] KEHC 725 (KLR)
- Parties
- Appellant: Nashee Mohamed; Respondent: Jamal S. Omar
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 41 of 1996
- Procedural Posture
- Civil Appeal / Ruling on Application for Review After Dismissal of Appeal for Non Compliance With Conditions
- Outcome
- application dismissed with costs
- Legal Topics
- Review of Orders, Dismissal for Non Compliance, Reinstatement of Appeal, Court Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Nashee Mohamed
Appellant
Jamal S. Omar
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review After Dismissal of Appeal for Non Compliance With Conditions
Legal Issues
- 1 Whether the applicant is entitled to review of the orders made on 5th April, 2001 under Order 44 Rule 1 Civil Procedure Rules.
- 2 Whether the court can exercise discretion to reinstate an appeal dismissed for non-compliance with conditions.
- 3 Whether the application for review was properly grounded and timely.
Ratio Decidendi
The court held that the applicant failed to state the grounds for review under Order 44 Rule 1 Civil Procedure Rules and did not make submissions thereunder. The application was therefore not properly before the court. Furthermore, the appeal had already stood dismissed by operation of the default clause due to non-compliance with the condition to set down the appeal for hearing within 60 days. The applicant did not act promptly to seek extension or arrest the situation before the expiry of the period. The court found that there was no appeal on record to be reinstated and that equity does not aid the indolent. Consequently, the application for review was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application for review is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MOMBASA CIVIL APPEAL NO. 41 OF 1996
NASHEE MOHAMED …………………………………… APPELANT =VERSUS= JAMAL S. OMAR…………………………………….RESPONDENT
RULING
On the 5th April, 2001 I reinstated the Appeal, earlier dismissed, for hearing on four conditions namely:
“(1)The Appellant’s Advocates shall personally bear the costs of the application assessed at Kshs. 10,000/ -
(2) The Appellant’s Advocates shall personally bear the costs thrown away in the appeal assessed at Kshs. 30,000/ -.
(3) Both amounts in (1) & (2) shall be paid within 14 days.
(4) The Appeal shall be set down for hearing and be disposed off within 60 days.
(5) In default of compliance with any of the above terms the Appeal shall stand dismissed without further application.”
The first three orders were complied with. But not the fourth. Sixty days from 5th April 2001 expired on 4th June, 2001. The 5th condition therefore took effect as at that date and the Appeal stood dismissed.
On 6th June 2001 however the Appellant returned to court and took out a Notice of Motion seeking a review of the orders made on 5th April, 2001; further orders for maintenance of the status quo-and an order that certified copies of proceedings and judgment of the lower court be dispensed with. Order 44 r 1 & 2 Civil Procedure Rules were invoked. That is the subject matter of this ruling.
The grounds for seeking review under O44 r 1 were not stated and learned counsel for the Applicant Mr. Mwakisha did not make submissions there under. He was content to say that since under O41 there is no provision for reinstatement of a dismissed Appeal, the matter falls under the discretion of the court under S.3 A of the Civil Procedure Act. The Application before me however was for Review under O44 r 1 Civil Procedure Rules and the Applicant is bound to state under what limb or limbs of that Rule the application is based and to satisfy the court on the exercise of its discretion there-under. That was indeed one of the objections taken up by learned counsel for the Respondent Mr. Gathuku and I think properly so. The other objection taken, and I think rightly so, is that there is no Appeal on record since the default clause took effect on 5th June, 2001 and there was no application made before then to arrest the situation. A vigilant Appellant would have known long before 5th June, 2001 whether or not they would be able to comply and sought orders for extension of the period. But true to character in this particular Appeal the Appellant waited until it was too late to salvage the situation. He has himself to blame as equity does not aid the indolent.
I dismiss the application with costs.
Dated this 11th day of July 2001.
P. N. WAKI
JUDGE