[2014] KEHC 7983 (KLR)
The court found that the appellant failed to provide any satisfactory explanation for the inordinate delay of over 12 years in seeking to set aside the dismissal order and reinstate the appeal. The only explanation offered was lack of money, which the court did not consider sufficient. The requirements of Order 45...
Source-derived case information.
- Citation
- [2014] KEHC 7983 (KLR)
- Parties
- Appellant: Njeru Ndambiri; Respondent: Nyaga Mwendia; Interested Party: David Mugo Mwaniki
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 350 of 1992
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Review Under Order 45, Inordinate Delay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Njeru Ndambiri
Appellant
Nyaga Mwendia
Respondent
David Mugo Mwaniki
Interested Party
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the appellant has satisfied the requirements for setting aside the dismissal order and reinstating the appeal.
- 2 Whether the delay of over 12 years in bringing the application is excusable under Order 45 of the Civil Procedure Rules, 2010.
Ratio Decidendi
The court found that the appellant failed to provide any satisfactory explanation for the inordinate delay of over 12 years in seeking to set aside the dismissal order and reinstate the appeal. The only explanation offered was lack of money, which the court did not consider sufficient. The requirements of Order 45 rule 1 of the Civil Procedure Rules, 2010, were not met. Even if they had been, the court would not have exercised its discretion to revive the appeal after such a long period, as litigation must come to an end. Accordingly, the application was dismissed as entirely without merit.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the order of dismissal and reinstate the appeal is dismissed.
- Costs awarded to the respondents.
Full Case Text
Judgment text and source record
24 paragraphs
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVILL DIVISION
CIVIL APPEAL NO 350 OF 1992
NJERU NDAMBIRI .........................................................APPELLANT
VERSUS
NYAGA MWENDIA .....................................................RESPONDENT
DAVID MUGO MWANIKI .................................INTERESTED PARTY
R U L I N G
The memorandum of appeal herein was filed on 9th October 1992. On 14th February 2001 the appeal was dismissed for want of prosecution in the presence of counsel for both parties.
More than twelve (12) years down the line the Appellant has applied by notice of motion dated 9th September 2013 for an order to set aside the order of dismissal and reinstate the appeal.
The Appellant states in his grounds for the application that he has now withdrawn instructions from his advocates and will proceed in person; that he is now ready to prepare the record of appeal as may be directed by the court; and that the delay in acting was occasioned by his advocates. There is a supporting affidavit sworn by him.
There are no papers filed in response by the Respondent. It is
not clear if he was served, or whether he is alive or still in the appeal. But there is an Interested Party who has opposed the application by grounds of opposition filed on 24th March 2014. Those grounds are that there has been inordinate and inexcusable delay in applying; and that the suit property has since changed hands.
In his supporting affidavit the Appellant has offered no explanation for the very long delay in applying. When the court put the question to him at the hearing of his application he answered that he had no money during the 12-year delay.
This being essentially an application for review under Order 45
of the Civil Procedure Rules, 2010 (the Rules) the Appellant must satisfy the requirements of rule 1 of that Order. He has not come anywhere near. The application for dismissal for want of prosecution was canvassed inter-partes on 14th February 2001.
Litigation must come to an end. Even if the Appellant had met
the strict requirements of Order 45, rule 1 of the Rules, which he has not, I would not have woken up the dogs in this case after more than 12 years!
The application is entirely without merit. It is dismissed with
costs to the Respondents. It is so ordered.
DATED AND SIGNED AT NAIROBI THIS 20th DAY OF MAY 2014
H.P.G.WAWERU
JUDGE
DELIVERED AT NAIROBI THIS 27TH DAY OF MAY 2014