[2018] KEHC 9946 (KLR)
The court found that although the appeal had been dormant for several years, the applicant's failure to prosecute was partly due to the registry's delay in supplying the lower court record. The application for dismissal was heard in the applicant's absence, though he had been served. Now that the lower court record...
Source-derived case information.
- Citation
- [2018] KEHC 9946 (KLR)
- Parties
- Applicant: Peter Mbua Gaitho; Respondent: Anna Munyiua; Respondent: Joseph Mutuku Mbithi (suing as the representatives of the estate of Job Mulinge Mbithi–Deceased)
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 294 of 2018
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal Order
- Outcome
- application allowed with conditions
- Judges
- BT Jaden
- Legal Topics
- Dismissal for Want of Prosecution, Setting Aside Orders, Appeal Procedure
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Mbua Gaitho
Applicant
Anna Munyiua
Respondent
Joseph Mutuku Mbithi (suing as the representatives of the estate of Job Mulinge Mbithi–Deceased)
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal Order
Legal Issues
- 1 Whether the order dismissing the appeal for want of prosecution should be set aside.
- 2 Whether the applicant's absence and delay were justified.
Ratio Decidendi
The court found that although the appeal had been dormant for several years, the applicant's failure to prosecute was partly due to the registry's delay in supplying the lower court record. The application for dismissal was heard in the applicant's absence, though he had been served. Now that the lower court record was available, the interests of justice required that the applicant be given an opportunity to prosecute the appeal. The court therefore exercised its discretion to set aside the dismissal order, subject to the applicant compiling and serving the record of appeal and fixing the appeal for directions within 90 days. Costs were awarded to the respondent.
Court Disposition
application allowed with conditions
Orders
- The order made on 31st January, 2018 granting the Notice of Motion dated 29th June, 2017 is set aside.
- The application is allowed on condition that the Record of Appeal be compiled and served and the appeal fixed for directions within 90 days from the date hereof.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL DIVISION
HIGH COURT CIVIL APPEAL NO. 294 OF 2012
PETER MBAU GAITHO............................................................APPLICANT
VERSUS
ANNA MUNYIUA & JOSEPH MUTUKU...........................RESPONDENT
MBITHI(Suing as the representatives of the
estate of JOB MULINGE MBITHI–Deceased)
RULING
1. The application dated 7th March, 2018 seeks orders that the order made on 31st January, 2018 granting the Notice of Motion dated 29th June, 2017 be set aside and the motion be heard afresh.
2. It is stated in the grounds and the affidavit in support that the Applicant was not in court when the application dated 24th June, 2017 was heard and the application for dismissal of suit for want of prosecution allowed. The delay in prosecuting the appeal is blamed on failure by the registry to supply the lower court proceedings.
3. The application is opposed. It is stated in the replying affidavit that the appeal was filed six years ago and that the Applicant has not been keen in prosecuting the same.
4. I have considered the application, the response to the same and the submissions made.
5. It is clear from the record that the appeal herein was filed on 8th June 2012. No steps had been taken to prosecute the same until about five years later in the year 2017 when the application for the dismissal of the appeal was filed. The application for dismissal proceeded without the Applicant’s participation though served.
6. The lower court record has now been availed. To serve the wider interest of justice, this court is inclined to allow the application. The application is hereby allowed on condition that the Record of Appeal be compiled and served and the appeal fixed for directions within 90 days from the date hereof. Costs to the Respondent.
Dated, signed and delivered in Nairobi this 4th day of Dec., 2018
B. THURANIRA JADEN
JUDGE