[2020] KEHC 6133 (KLR)
The court found that although the appellants had been indolent in prosecuting the appeal, it was unclear from the record whether they had been properly notified of the Notice to Show Cause hearing that led to the dismissal. The court exercised its discretion to set aside the dismissal order, granting the appellants...
Source-derived case information.
- Citation
- [2020] KEHC 6133 (KLR)
- Parties
- Appellant: Ntwiga Josphat; Appellant: Kirimi Josphat; Appellant: Jane Josphat; Appellant: Rose Riungu Josphat; Appellant: Kathambi Kiruja; Respondent: Esther Gitonga Kiruja
- Court
- High Court
- Court Station
- High Court at Chuka
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 19 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal for Want of Prosecution
- Outcome
- application allowed
- Judges
- BB Limo
- Legal Topics
- Dismissal for Want of Prosecution, Notice to Show Cause, Reinstatement of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ntwiga Josphat
Appellant
Kirimi Josphat
Appellant
Jane Josphat
Appellant
Rose Riungu Josphat
Appellant
Kathambi Kiruja
Appellant
Esther Gitonga Kiruja
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 properly served with the Notice to Show Cause prior to dismissal.
- 3 Whether the appellants should be granted additional time to file the record of appeal.
Ratio Decidendi
The court found that although the appellants had been indolent in prosecuting the appeal, it was unclear from the record whether they had been properly notified of the Notice to Show Cause hearing that led to the dismissal. The court exercised its discretion to set aside the dismissal order, granting the appellants a final opportunity to file the record of appeal within seven days. The court emphasized that the proceedings had been supplied in February 2019 and there was no valid excuse for further delay. No order as to costs was made.
Court Disposition
application allowed
Orders
- The dismissal order of the appeal made on 5th February 2020 is set aside.
- The appellants are granted 7 days from the date of this ruling to file the record of appeal.
Full Case Text
Judgment text and source record
29 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT CHUKA
HCCA NO. 19 OF 2018
NTWIGA JOSPHAT...................................................................1ST APPELLANT
KIRIMI JOSPHAT.....................................................................2ND APPELLANT
JANE JOSPHAT........................................................................3RD APPELLANT
ROSE RIUNGU JOSPHAT.......................................................4TH APPELLANT
KATHAMBI KIRUJA...............................................................5TH APPELLANT
VERSUS
ESTHER GITONGA KIRUJA......................................................RESPONDENT
R U L I N G
1. Before me is an application by way of Notice of Motion dated 19th February 2020 brought by Ntwiga Josphat, Kirimi Josphat, Rose Riungu Josphat and Kathambi Kiruja the Applicants herein who have moved this court for the following orders/relief;
(i) That the dismissal order of the appeal made on 5th February 2020 be set aside and Appellants be given limited time to file a record of appeal.
2. The grounds upon which this application has been brought are listed as follows:
a) That this appeal was dismissed on 5th February 2020 for want of prosecution.
b) That the Notice to Show Cause was never served upon the parties or their counsel.
c) That the Appellants have been disinherited through the ruling appealed from wants to be heard.
3. This application is supported by an affidavit sworn by Elijah Ogoti, counsel representing the applicants. In the Supporting Affidavit, the counsel states that there is affidavit of service to show that his office was served with Notice To Show Cause for 5th February 2020.
4. This court has considered this application and though I note that the Appellants have been indolent in prosecuting this appeal as no action has been taken since 30th April 2019 when the appeal was admitted, I note that it is unclear from the court record how the date of 5th February 2020 was fixed for Notice to Show Cause and whether the Appellants were notified. This court has also noted that this appeal has now been dismissed twice for want of prosecution. I am however inclined to exercise my discretion and grant them a last chance to file the record of appeal and set down the appeal for directions. The Appellants are given 7 days from the date of this ruling to file the record as the proceedings were typed and supplied on 14th February 2019. There is no excuse why the Appellants should not have this appeal heard and determined.
I will therefore allow this application but I will not make any order as to costs.
Dated, signed and delivered via skype this 4th day of May 2020.
R.K. LIMO
JUDGE
4/5/2020
Ruling signed, dated and delivered in court in presence of Ogoti for the Applicant and in absence of Respondent in person.
R.K. LIMO
JUDGE
4/5/2020