[2012] KEHC 5850 (KLR)
The court held that the dismissal of the appeal was improper because the matter was fixed for mention for directions, not for hearing, and there was no evidence that notice of the mention date had been served on the parties. The appeal had not been formally admitted or summarily rejected, and the proper course would...
Source-derived case information.
- Citation
- [2012] KEHC 5850 (KLR)
- Parties
- Appellant: Peter Kithuka Matolo; Appellant: Quentin Wambua Mutisya; Appellant: Michael Kinuthia Mutisya; Respondent: Benson Mutuku
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 78 of 2005
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed; dismissal order set aside; appeal reinstated and admitted for hearing.
- Judges
- DW Mbuteti
- Legal Topics
- Dismissal for Non Attendance, Reinstatement of Appeal, Admission of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Kithuka Matolo
Appellant
Quentin Wambua Mutisya
Appellant
Michael Kinuthia Mutisya
Appellant
Benson Mutuku
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 was proper when the matter was fixed for mention for directions.
- 2 Whether the appeal should be reinstated and formally admitted for hearing.
Ratio Decidendi
The court held that the dismissal of the appeal was improper because the matter was fixed for mention for directions, not for hearing, and there was no evidence that notice of the mention date had been served on the parties. The appeal had not been formally admitted or summarily rejected, and the proper course would have been for the court to give directions for the filing of the record of appeal in preparation for hearing. Consequently, the order of dismissal was set aside, and the appeal was reinstated and formally admitted for hearing. Costs of the application were ordered to be in the cause.
Court Disposition
Application allowed; dismissal order set aside; appeal reinstated and admitted for hearing.
Orders
- The order of dismissal of 2nd October 2008 is set aside.
- The appeal is reinstated for hearing and is hereby formally admitted.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
IN THE HIGH OF KENYA AT MACHAKOS
Civil Appeal 78 of 2005
1. PETER KITHUKA MATOLO
2. QUENTIN WAMBUA MUTISYA
3. MICHAEL KINUTHIA MUTISYA………………..……...…....APPELLANTS
VERSUS
BENSON MUTUKU……………………………………………...……RESPONDENT
R U L I N G
1. This appeal was dismissed on 2nd October 2008 for non-attendance by both parties. The appeal had been fixed for mention on that date by the registry for directions. Notice was to be served. There was no enquiry on record whether such notice had been served.
2. The appeal had not been formally admitted. Nor had it been summarily rejected.
3. As the appeal was not coming up for hearing, I hold the view that it was improperly dismissed when it came up for directions. The court ought to have given directions on the filing of record of appeal in preparation for hearing of the appeal.
4. Having read the affidavit in support of the chamber summons dated 3rd July 2009 (for setting aside the order of dismissal and reinstatement of the appeal to hearing) and the replying affidavit, I am satisfied that the application has merit and I will allow the same. The order of dismissal of 2nd October 2008 is hereby set aside and the appeal reinstated for hearing. It is hereby formally admitted. Further directions will be given by the court in due course. Costs of the application will be in the cause. It so ordered.
5. The delay in preparation of this ruling is deeply regretted. It was caused by my poor state of health the last few years. But thank God I have now regained my full health.
DATED AT NAIROBI THIS 4TH DAY OF SEPTEMBER 2012
H. P. G. WAWERU
JUDGE
COUNTERSIGNED AND DELIVERED AT MACHAKOS THIS 28TH DAY OF SEPTEMBER 2012
ASIKE-MAKHANDIA
………………………
JUDGE