Richard Onyinge v David Kirimojo [2021] KEHC 9576 (KLR)
- Citation
- [2021] KEHC 9576 (KLR)
- Status
- Judgment
- Jurisdiction
- Kenya
- Court
- High Court
- Panel
- SN Riechi
- Case number
- Civil Appeal 35 of 2019
- Language
- English
More details
- Court
- High Court
- Panel
- SN Riechi
- Case number
- Civil Appeal 35 of 2019
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the appellant's absence on the first hearing date was satisfactorily explained by his university examination commitments. Given that it was the first hearing and the explanation was plausible, the interests of justice required that the appellant be given an opportunity to prosecute his suit. The trial court's dismissal was therefore set aside, and the suit was ordered reinstated to allow the matter to be heard on its merits.
Court disposition
appeal_allowed
Orders
- The appeal is allowed.
- The order of dismissal is set aside.
- The suit is reinstated for hearing.
- Each party to bear his own costs.
02
Material facts
Parties
Richard Onynge
AppellantDavid Kirimojo
Respondent03
Procedural history
Posture
Civil Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether the appellant has demonstrated sufficient grounds for reinstatement of his suit dismissed for non-attendance.
- 02
Whether the explanation for non-attendance on the first hearing date is plausible.
Party arguments
- Applicant
- The appellant argued that the trial court erred in dismissing the suit for non-attendance on the first hearing date. He explained his absence was due to undertaking university exams and requested an opportunity to prosecute his suit.
- Respondent
- The respondent contended that the appeal was incompetent as no decree had been extracted, claimed no cause of action existed against him as the appellant was not his tenant, and argued the appeal was an abuse of court process.
05
Court’s reasoning
Legal principles
- 01
Order 12 Rule 7 of the Civil Procedure Rules
A suit dismissed for non-attendance may be reinstated if sufficient cause is shown for the absence, especially if it was the first hearing date.
- 02
Article 50 of the Constitution of Kenya
The right to be heard is fundamental and should not be denied where plausible explanation for absence is provided.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the appellant's absence on the first hearing date was satisfactorily explained by his university examination commitments. Given that it was the first hearing and the explanation was plausible, the interests of justice required that the appellant be given an opportunity to prosecute his suit. The trial court's dismissal was therefore set aside, and the suit was ordered reinstated to allow the matter to be heard on its merits.
Obiter and limits
- Each party to bear his own costs.
Court disposition
appeal_allowed
- The appeal is allowed.
- The order of dismissal is set aside.
- The suit is reinstated for hearing.
- Each party to bear his own costs.
Source and reliance status
High Court
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
High Court
Judgment
REPUBLIC OF KENYA.
IN THE HIGH COURT OF KENYA AT BUNGOMA.
CIVIL APPEAL NO. 35 OF 2019.
(An Appeal arising from the Ruling the SPM’s Court at Kimilili on the 9th August, 2018 by Hon. D.O. Onyango (SPM) In Civil Suit No. 110 of 2017.
RICHARD ONYINGE.....................................................APPELLANT
VERSUS
DAVID KIRIMOJO......................................................RESPONDENT
JUDGMENT.
This is an Appeal from a ruling delivered in Kimilili SPMCC. 110/2017 where the Senior Principal Magistrate dismissed the appellants application seeking to reinstate his suit which had been dismissed on 22. 2.2018 for non-attendance of the Appellant who was the Plaintiff. The Appellant in seeking this court to set aside the ruling submits that the trial court erred in dismissing the suit for non attendance that day being the first hearing. He submits that he was undertaking exams at Masinde Muliro University at time suit was dismissed and that he should be given an opportunity to prosecute his suit.
The Respondent opposes the appeal. He submitted that this appeal is incompetent as no decree has been extracted, that the Respondent does not know the appellant and therefore there is no cause of action as the same would only accrue to one Mr. Nakitare; who was a tenant of the Respondent and whose property were auctioned for non-payment of rent. He therefore submits that this appeal is an abuse of the court.
The issue in this appeal is whether the appellant has demonstrate ground for reinstatement of his suit which was dismissed on 22. 2.2018 for non-attendance. From a perusal of proceedings, it is evident that 22. 2.2018 was the first hearing date; where the Appellant did not attend. He explains the non-attendance as due to having internal exams at the University. That appears plausible explanation. Taking into account that that was a first hearing date, I am satisfied that an order for reinstatement will give the appellant an opportunity to prosecute this case.
I therefore allow the appeal set aside the order or dismissal of sum and direct the suit be reinstated and parties to proceed for hearing.
Each party to bear his own costs.
Dated and Delivered at Bungoma this 27Th day of January, 2021
S.N. RIECHI
JUDGE
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