[2008] KEHC 2793 (KLR)
The court held that despite the application being brought under the wrong provision of law, the overriding objective of justice required that the application for reinstatement be allowed. The court found that the applicant's non-appearance was due to the failure of counsel to attend, and that the amount involved was...
Source-derived case information.
- Citation
- [2008] KEHC 2793 (KLR)
- Parties
- Applicant: Peter Muriithi Samuel; Respondent: Francis Maina Muchiri
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- ? 82 of 2006
- Procedural Posture
- Miscellaneous Application / Ruling on Application to Reinstate Dismissed Application for Enlargement of Time to Appeal
- Outcome
- application allowed with conditions
- Legal Topics
- Reinstatement of Application, Enlargement of Time, Non Appearance of Counsel, Stay of Execution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Peter Muriithi Samuel
Applicant
Francis Maina Muchiri
Respondent
Procedural Posture
Miscellaneous Application / Ruling on Application to Reinstate Dismissed Application for Enlargement of Time to Appeal
Legal Issues
- 1 Whether the application to reinstate the dismissed application for enlargement of time to appeal should be allowed.
- 2 Whether the application was fatally defective for being brought under the wrong provision of law.
- 3 Whether the applicant's non-appearance was excusable.
Ratio Decidendi
The court held that despite the application being brought under the wrong provision of law, the overriding objective of justice required that the application for reinstatement be allowed. The court found that the applicant's non-appearance was due to the failure of counsel to attend, and that the amount involved was substantial. The court exercised its discretion to reinstate the application on condition that the applicant pays all thrown away costs, including auctioneers' charges, to the respondent and pays the sum of KES 100,000 to the decree holder within 21 days. The court emphasized that procedural rules should serve the ends of justice and not be used to defeat substantive rights.
Court Disposition
application allowed with conditions
Orders
- All thrown away costs including auctioneers charges shall be paid to respondent by the Applicant.
- The sum of KES 100,000 shall be paid to decree holder.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
Misc Appli 82 of 2006
PETER MURIITHI SAMUEL ……………..……………….APPLICANT
VERSUS
FRANCIS MAINA MUCHIRI…………………………..RESPONDENT
RULING
Application dated 4/5/2007 seeking to reinstate application dated 20/7/2006 which application was seeking to enlarge time within which to file an appeal arising out of a decision on review application. The application dated 20/7/2006 was dismissed for non appearance of counsel by this court on 16/1/2007.
I have examined the application with supporting affidavit and replying affidavit. The application is brought under the wrong provision O.XX1 rule 22 which deals with transferred decrees for execution. However it appears that the amount due is only 100,000/=. It is not clear why arrangements to liquidate the sum has not been made since 27/4/2004. The litigants are aware that the decretal sum increases rapidly by interest and other charges and it is not surprising the amount is now said to be 2,341,205/=. The Applicant has himself to blame. From what is disclosed in the supporting affidavit, the reason for non appearance is that the advocate appointed to stand for Applicant failed to attend on material day and that the amount involved is not small. (I have already pointed to this.)
Upon considering this matter notwithstanding it is brought under wrong provisions. I am inclined to exercise my discretion in favour of the Applicant. Rules of procedure are handmaidens of justice. I therefore allow stay and order the application dated 20/7/2006 to be reinstated on condition:-
1. that all thrown away costs including auctioneers charges shall be paid to respondent by the Applicant.
2. the sum of Shs.100,000/= shall be paid to decree holder.
Order 1 and 2 above to be complied with within the next 21 days from today. Also the application dated 20/7/2006 shall be fixed for hearing within the next 21 days.
It is so ordered.
Dated this 11th February of 2008.
J. N. KHAMINWA
JUDGE
11/2/2008
Khaminwa – Judge
Njue – Clerk
Read in open court in presence of Mr. Kathungu on 11/2/2008.
J. N. KHAMINWA
JUDGE