[2019] KEHC 11163 (KLR)
The court found that although mistakes of counsel may be considered, the applicant had an obligation to follow up on the progress of his case. The delay in prosecuting the appeal was inordinate, and the applicant had not taken steps to prosecute the appeal since the issuance of stay orders. However, to balance the...
Source-derived case information.
- Citation
- [2019] KEHC 11163 (KLR)
- Parties
- Applicant: Paul Kithinji Ikiugu; Respondent: Ntima Farmers Cooperative Society Ltd
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 581 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed conditionally.
- Judges
- BT Jaden
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Attendance, Extension of Time, Mistake of Counsel
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Paul Kithinji Ikiugu
Applicant
Ntima Farmers Cooperative Society Ltd
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for non-attendance should be set aside.
- 2 Whether the appeal should be reinstated and time extended for its prosecution.
- 3 Whether the mistakes of counsel justify reinstatement of the appeal.
Ratio Decidendi
The court found that although mistakes of counsel may be considered, the applicant had an obligation to follow up on the progress of his case. The delay in prosecuting the appeal was inordinate, and the applicant had not taken steps to prosecute the appeal since the issuance of stay orders. However, to balance the interests of both parties, the court allowed the application to reinstate the appeal on the condition that the principal amount in dispute be deposited in a joint interest-earning account or in court within 30 days. Failure to comply would result in the appeal standing dismissed. The applicant was also directed to prepare the record of appeal and list the appeal for directions...
Court Disposition
Application allowed conditionally.
Orders
- The application to set aside the dismissal and reinstate the appeal is allowed on condition that the principal amount of Ksh.1,061,927.30 is deposited in a joint interest earning bank account of the counsels or in court within 30 days.
- In default of deposit, the appeal shall stand dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYAAT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 581 OF 2013
PAUL KITHINJI IKIUGU..............................................................PLAINTIFF/APPLICANT
VERSUS
NTIMA FARMERSCOOPERATIVE SOCIETY LTD........DEFENDANT/RESPONDENT
RULING
1. The application dated 7th June, 2017 seeks the following orders that:
“1. Spent.
2. That the orders issued by the honourable court on the 19th day of April, 2016 be set aside.
3. That the court do extend time within which to prosecute the appeal
4. That the honourable court be pleased to reinstate the appeal filed by the Appellant/Applicant.
5. That costs of this application be provided for.
2. It is stated in the grounds and the affidavit in support that the appeal herein was dismissed for non-attendance on 19th April, 2016. That the court had ordered that the appeal be prosecuted within the year 2014 but the same was not done due to mistakes attributable to the Applicant counsel. It is contended that the Applicant has instructed another advocate who has strict instructions to prosecute the matter expeditiously. The Applicant is willing to abide by any conditions set by the court.
3. The application is opposed. According to the replying affidavit, there has been inordinate delay and laxity in prosecuting the appeal herein while the Applicant is enjoying the stay orders. That the mistakes of the Applicant’s former advocates should not be visited on the Respondent and litigation ought to come to an end.
4. The application was disposed of by way of written submissions. I have considered the said submissions.
5. A perusal of the court record herein confirms that the Applicant was to ensure the appeal was heard within the year 2014. This did not happen. Although one may argue that the mistakes of a counsel should not be visited on a litigant, the Applicant had the obligation to follow up on the progress of his case. As stated by the court in the case of Savings & Loan Ltd v Susan Wanjiru Muritu Nairobi Milimani HCC 397/02:
“A litigant has a duty to pursue the prosecution of his or her case. The court cannot set aside dismissal of a suit on the sole ground of a mistake by counsel of the litigant on account of such advocate’s failure to attend court. It is the duty of the litigant to constantly check with her advocate the progress of her case.”
6. Stay of execution orders were issued herein on 27th January, 2014. Since then the Applicant seems not to have taken any steps to ensure the appeal has been prosecuted. The delay is inordinate. To balance the competing interests of the parties, this court allows the application on condition that the principal amount of Ksh.1,061,927. 30/= is deposited in a joint interest earning bank account of the counsels herein or in court within 30 days from the date hereof. In default the appeal to stand dismissed. The Record of Appeal to be prepared and appeal listed for directions within 90 days from date hereof.
Dated, signed and delivered in Nairobi this 28th day of March, 2019
B. THURANIRA JADEN
JUDGE