[2023] KEHC 26834 (KLR)
The court found that the appellants' explanation for their absence and failure to prosecute the appeal was uncontroverted by the respondents. The physical file was missing on the scheduled date, and the appellants were not aware of the proceedings that led to the dismissal. In the absence of any challenge to these...
Source-derived case information.
- Citation
- [2023] KEHC 26834 (KLR)
- Parties
- Appellant: Kenneth Njiru Njagi; Appellant: Caroline Nyambura; Appellant: Kensville Motors Limited; Respondent: Lineal Company Limited; Respondent: Gibson Kimani Maina
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E608 of 2021
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- Application to set aside dismissal allowed with conditions.
- Judges
- AN Ongeri
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Reinstatement of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kenneth Njiru Njagi
Appellant
Caroline Nyambura
Appellant
Kensville Motors Limited
Appellant
Lineal Company Limited
Respondent
Gibson Kimani Maina
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution should be set aside.
- 2 Whether the appellants were denied an opportunity to prosecute the appeal due to circumstances beyond their control.
- 3 Whether the respondents are entitled to thrown away costs.
Ratio Decidendi
The court found that the appellants' explanation for their absence and failure to prosecute the appeal was uncontroverted by the respondents. The physical file was missing on the scheduled date, and the appellants were not aware of the proceedings that led to the dismissal. In the absence of any challenge to these averments, the court exercised its discretion to set aside the dismissal order, subject to the appellants paying thrown away costs and prosecuting the appeal within a specified period. The court emphasized the need to balance the right to be heard with the efficient administration of justice, granting the application on terms to prevent prejudice to the respondents.
Court Disposition
Application to set aside dismissal allowed with conditions.
Orders
- The application dated 19/9/2023 is allowed.
- The appellants shall pay the respondents thrown away costs of KES 20,000 before the appeal is heard.
Full Case Text
Judgment text and source record
29 paragraphs
Njagi & 2 others v Lineal Company Limited & another (Civil Appeal E608 of 2021) [2023] KEHC 26834 (KLR) (Civ) (22 December 2023) (Ruling)
Neutral citation: [2023] KEHC 26834 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E608 of 2021
AN Ongeri, J
December 22, 2023
Between
Kenneth Njiru Njagi
1st Appellant
Caroline Nyambura
2nd Appellant
Kensville Motors Limited
3rd Appellant
and
Lineal Company Limited
1st Respondent
Gibson Kimani Maina
2nd Respondent
Ruling
1. This appeal was dismissed on 30/6/2023 for want of prosecution and stay orders which were granted by the trial court were vacated.
2. The appellant filed the application dated 19/9/2023 seeking to set aside the dismissal order.
3. I have considered the trial submissions filed herein.
4. The appellant/applicant stated that the matter was listed on 9/6/2023 but the same did not proceed and the same was allocated 16/6/2023 but the physical file was missing.
5. The appellant said they were not aware that the matter proceeded on 30/6/2023 until the order issued on 4/7/2023 showing the appeal was dismissed on 30/6/2023.
6. I find that the averments by the applicant have not been controverted by the respondent.
7. I allow the application dated 19/9/2023 in the following grounds;i.That the appellants pay the respondents thrown away costs of kshs.20,000 before the appeal is heard.ii.That the appeal be fully prosecuted within 90 days of this date failure to which the appeal is automatically dismissed with costs to the respondent.
DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF DECEMBER, 2023. ………….…………….A. N. ONGERIJUDGEIn the presence of:……………………………. for the Appellant……………………………. for the Respondent