[2017] KEHC 5877 (KLR)

[2017] KEHC 5877 (KLR)

The court found that while the appeal was dismissed for want of prosecution under Order 42 Rule 35(2), sufficient notice was given through publication on the judiciary's website and notice boards. However, the appellant had made genuine efforts to have the appeal admitted and directions issued, but was hindered by the lower court's failure to forward the original record. The delay was not entirely attributable to the appellant. The court held that there was sufficient reason to review and set aside the dismissal order in the interest of substantive justice, provided the appellant takes steps to progress the appeal within 120 days, failing which the appeal would stand dismissed with costs...

Citation
[2017] KEHC 5877 (KLR)
Parties
Appellant: Eldoret Steel Mills Ltd; Respondent: Patrick Ontita Mokuo
Court
High Court
Court Station
High Court at Eldoret
Jurisdiction
Kenya
Judgment Date
6 April 2017
Case Number
Civil Appeal 151 of 2010
Procedural Posture
Civil Appeal / Application for Review and Reinstatement of Dismissed Appeal
Outcome
Application allowed with conditions; appeal reinstated subject to compliance within 120 days; costs to the applicant.
Judges
CW Githua
Legal Topics
Dismissal for Want of Prosecution, Review of Court Orders, Notice Requirements, Admission of Appeals
Source Language
English
Civil Procedure Dismissal for Want of Prosecution Review of Court Orders Notice Requirements Admission of Appeals

Case Brief

Summary, issues, holding and outcome

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Parties

Eldoret Steel Mills Ltd

Appellant

Patrick Ontita Mokuo

Respondent

Procedural Posture

Civil Appeal / Application for Review and Reinstatement of Dismissed Appeal

Legal Issues

  1. 1 Whether the dismissal of the appeal for want of prosecution was proper in the absence of formal notice to the appellant.
  2. 2 Whether the applicant met the conditions for review and setting aside of the dismissal order under Order 45 Rule 1 of the Civil Procedure Rules.
  3. 3 Whether the appellant was to blame for the delay in prosecuting the appeal.

Ratio Decidendi

The court found that while the appeal was dismissed for want of prosecution under Order 42 Rule 35(2), sufficient notice was given through publication on the judiciary's website and notice boards. However, the appellant had made genuine efforts to have the appeal admitted and directions issued, but was hindered by the lower court's failure to forward the original record. The delay was not entirely attributable to the appellant. The court held that there was sufficient reason to review and set aside the dismissal order in the interest of substantive justice, provided the appellant takes steps to progress the appeal within 120 days, failing which the appeal would stand dismissed with costs...

Court Disposition

Application allowed with conditions; appeal reinstated subject to compliance within 120 days; costs to the applicant.

Orders

  • The order made on 7th July 2015 dismissing the appeal for want of prosecution is reviewed and set aside.
  • The appeal is reinstated on condition that the applicant follows up with the Deputy Registrar and causes the appeal to be admitted and listed for mention for directions within 120 days; otherwise, the appeal shall stand dismissed with costs to the respondent.