[2023] KEHC 25525 (KLR)
The court found that, although the applicant's explanation for non-attendance (unstable internet and failure of an advocate to hold brief) was not fully substantiated, issues of internet connectivity are sometimes difficult to prove and are experienced by the court as well. The application for review was filed...
Source-derived case information.
- Citation
- [2023] KEHC 25525 (KLR)
- Parties
- Applicant: Wilfred Barasa Opondo; Respondent: Camilita Akinyi Odebero
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E178 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Review and Reinstatement
- Outcome
- Application allowed; dismissal order set aside; application reinstated; interim stay extended; costs to respondent.
- Judges
- JN Mulwa
- Legal Topics
- Review of Dismissal Orders, Reinstatement of Application, Non Attendance, Internet Connectivity Issues
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Wilfred Barasa Opondo
Applicant
Camilita Akinyi Odebero
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Review and Reinstatement
Legal Issues
- 1 Whether the applicant has provided sufficient cause for non-attendance leading to dismissal of his application.
- 2 Whether the dismissal order dated 26/07/2023 should be set aside and the application reinstated for hearing.
- 3 Whether interim stay orders should be reinstated pending hearing.
Ratio Decidendi
The court found that, although the applicant's explanation for non-attendance (unstable internet and failure of an advocate to hold brief) was not fully substantiated, issues of internet connectivity are sometimes difficult to prove and are experienced by the court as well. The application for review was filed promptly after the dismissal. Exercising judicial discretion under the Civil Procedure Act to do justice, the court set aside the dismissal order, reinstated the application for hearing, and extended interim stay orders. The applicant was ordered to pay costs to the respondent.
Court Disposition
Application allowed; dismissal order set aside; application reinstated; interim stay extended; costs to respondent.
Orders
- The dismissal orders dated 26/07/2023 are set aside.
- The Notice of Motion dated 30/03/2023 is reinstated for hearing interpartes on 20/03/2024.
Full Case Text
Judgment text and source record
21 paragraphs
Opondo v Odebero (Civil Appeal E178 of 2023) [2023] KEHC 25525 (KLR) (16 November 2023) (Ruling)
Neutral citation: [2023] KEHC 25525 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil Appeal E178 of 2023
JN Mulwa, J
November 16, 2023
Between
Wilfred Barasa Opondo
Applicant
and
Camilita Akinyi Odebero
Respondent
Ruling
Ruling in Respect of the Notice of Motion Dated 12/08/2023 1. By the Application, the Applicant seeks a review to set aside the dismissal order of his Application dated 30/03/2023 on the 26/07/2023 for none attendance/prosecution. I have considered the reasons for none attendance by the applicant stated at the supporting affidavit and the oral submissions.I have likewise looked at the opposing affidavit and arguments before me on the 24/10/2023.
2. Issues of unstable internet by counsel were raised for none attendance upon which another Advocate, whose name was not disclosed to hold brief, which did not happen.
3. The Respondent rightfully objections to that line of argument as no affidavit has been sworn by the advocate purportedly instructed to hold brief.Be that as it may, some issues especially on connectivity to internet, and dropping of calls cannot be easily proved. The court too experiences such incidents but I am not saying that such should be encouraged.
4. The court notes that this Application was filed soon thereafter.I therefore exercise my discretion, guided by provisions of section A, B and 3A of the Civil Procedure Act to do justice in the circumstances.
5. I proceed to allow the Application by setting aside the dismissal orders dated 26/07/2023, and reinstate for hearing Notice of Motion dated 30/03/2023. The said Notice of Motion dated 30/03/2023 shall therefore be heard interpartes on the 20/03/2024.
6. The interim stay of execution orders issued on the 3/08/2023 are reinstated and extended to 20/03/2024The Applicant is condemned to pay costs of the Application to the Respondent assessed at Kshs. 2000/= before the next hearing date.Orders accordingly.
DELIVERED, DATED AND SIGNED AT NAIROBI THIS 16THNOVEMBER, 2023. J. N. MULWAJUDGE