[2018] KEHC 661 (KLR)
The court found that the respondents' advocates failed to serve the appellants' advocates with the directions issued on 18th January 2018, which were substantive as they related to the hearing of the appeal and filing of submissions. This omission was not a mere technicality but a substantive breach affecting the...
Source-derived case information.
- Citation
- [2018] KEHC 661 (KLR)
- Parties
- Appellant: Patrick Mwiti Murithi; Appellant: Anthony Kirimi Chabari; Respondent: Paul Gikunda Miriti; Respondent: Judith Mwendwa Mukinda; Respondent: Cyprian Mero Mungania; Respondent: David K. Manyara
- Court
- High Court
- Court Station
- High Court at Meru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 286, 285, 284 & 283 of 2013
- Procedural Posture
- Civil Appeal / Application for Reinstatement of Appeal After Dismissal
- Outcome
- Application for reinstatement of appeals allowed; dismissal order set aside; appeals reinstated.
- Judges
- F Gikonyo
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Attendance, Service of Court Orders, Right to Fair Hearing
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Patrick Mwiti Murithi
Appellant
Anthony Kirimi Chabari
Appellant
Paul Gikunda Miriti
Respondent
Judith Mwendwa Mukinda
Respondent
Cyprian Mero Mungania
Respondent
David K. Manyara
Respondent
Procedural Posture
Civil Appeal / Application for Reinstatement of Appeal After Dismissal
Legal Issues
- 1 Whether the dismissal of the appeals for non-attendance was proper in light of lack of service of court directions on the appellants' advocates.
- 2 Whether the appeals should be reinstated to be heard on their merits.
- 3 Whether failure to serve directions amounts to a substantive breach affecting the right to fair hearing.
Ratio Decidendi
The court found that the respondents' advocates failed to serve the appellants' advocates with the directions issued on 18th January 2018, which were substantive as they related to the hearing of the appeal and filing of submissions. This omission was not a mere technicality but a substantive breach affecting the appellants' right to a fair hearing. The absence of evidence of service meant the appellants were not properly notified of the requirement to file submissions, and thus the dismissal of the appeals was irregular. The court held that such an order must be set aside ex debito justitiae to uphold the integrity of the judicial process. Consequently, the court set aside the dismissal...
Court Disposition
Application for reinstatement of appeals allowed; dismissal order set aside; appeals reinstated.
Orders
- The order dismissing the appeals is set aside.
- The appeals are reinstated and shall be heard on merit.
Full Case Text
Judgment text and source record
50 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MERU
CIVIL APPEAL NO. 286 OF 2013
PATRICK MWITI MURITHI
ANTHONY KIRIMI CHABARI..................................APPELLANTS
VERSUS
PAUL GIKUNDA MIRITI..........................................RESPONDENT
___________________________________________________
CONSOLIDATED WITH
CIVIL APPEAL NO. 285 OF 2013
PATRICK MWITI MURITHI
ANTHONY KIRIMI CHABARI................................APPELLANTS
VERSUS
JUDITH MWENDWA MUKINDA.............................RESPONDENT
___________________________________________________
AND WITH
CIVIL APPEAL NO. 284 OF 2013
PATRICK MWITI MURITHI
ANTHONY KIRIMI CHABARI................................APPELLANTS
VERSUS
CYPRIAN MERO MUNGANIA...............................RESPONDENT
AND WITH
CIVIL APPEAL NO. 283 OF 2013
___________________________________________________
PATRICK MWITI MURITHI
ANTHONY KIRIMI CHABARI..............................APPELLANTS
VERSUS
DAVID K. MANYARA...........................................RESPONDENT
___________________________________________________
RULING
Reinstatement of appeal
[1] In effect, the Motion dated 17th June, 2018 seeks for reinstatement of appeals which were dismissed by court on 11th June 2018. The application is expressed to be made under Order 42 rule 21, Order 50 rule 1 of the Civil Procedure Rules (CPR), sections 1B, 3 and 3A of the Civil Procedure Act (CPA). The reasons given for the setting aside of the order dismissing the appeal is that:
a. The appeals were dismissed on a date set for mention of the case;
b. The respondents’ advocates did not notify the appellants’ advocates of directions made eon 18th January 2018 as had been ordered by the court. Again, they were ordered on 9th April 2018 to notify the appellants of the directions made on 18th January 2018 but in vain. ;
c. Despite the foregoing omission, the appellants filed and served the record of appeal.
d. They should not therefore be punished for omissions of the respondents.
[2] The Applicants filed submission in support of their quest for setting aside of the dismissal orders and emphasized on the need to serve substantive justice on the basis of merits of the case as opposed to summary dismissal of party’s claim. They cited the case of .T. DOBIE and GEORGE MUNYAKA.
[3] The Respondents were served with the application with the hearing date thereof, i.e. 17th July 2018. On the hearing date, the Respondents did not appear and the court reserved ruling on the application to be delivered on 9th October 2018. The record is clear that the respondents’ advocates were to notify the appellants’ advocates of the directions of 18th January 2018. The directions were substantive as they were in relation to the hearing of the appeal by way of and filing of submissions thereto. There is no evidence of service of the directions upon the appellants’ advocates. I will therefore treat this as a case of ex debito justitiaeas no notice was given to the appellants of directions requiring them to file submissions on the appeal. Such omission is substantive and not merely a technicality as service of pleadings and orders of the court are at the heart of fair hearing and trial. See the decision in the case of Ramco Ltd Vs. Mistry Jadva Parbat & Co. Ltd. HCC No.171 of 2001that:-
“If there is no proper or any service of the summons to enter appearance to the suit, the resulting default judgment is an irregular one which the court must set aside ex debito justitiae (as a matter of right) on application by the defendant. Such a judgment is not set aside in exercise of discretion but as a matter of judicial duty in order to uphold the integrity of the judicial process itself. Secondly, if the default judgment is a regular one the court has an unfettered discretion to set aside such judgment and any consequential decree or order upon such terms as are just as ordained by Order IXA rule 10 of the Civil Procedure Rules. Case law on the exercise of the discretion is plenty”.
[4] Accordingly, I set aside the order dismissing these appeals and direct that the appeals shall now be heard on merit. I also direct that directions issued on 18th January 2018 shall now be complied with but from the date of this ruling. Failure to comply, the appeals will be deemed to be dismissed. It is so ordered.
Dated, signed and delivered in open court at Meru this 11th day of December, 2018
........................
F. GIKONYO
JUDGE
IN PRESENCE OF-:
Ojiambo for Anyoya for applicant
Mutegi for respondents
.........................
F. GIKONYO
JUDGE