[2018] KEHC 6158 (KLR)
The court held that after the expiration of 30 days from 6th September, 2016, the appeal stood dismissed by operation of the court's prior order due to the appellant's failure to file the decree as directed. Since the appeal was no longer in existence at the time the application to vacate or discharge the dismissal...
Source-derived case information.
- Citation
- [2018] KEHC 6158 (KLR)
- Parties
- Appellant: Rosemary Njeri Muiruri; Respondent: Margaret Njeri Kimani
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 2 of 2012
- Procedural Posture
- Civil Appeal / Ruling on Application to Vacate or Discharge Dismissal Order
- Outcome
- application dismissed with costs to the respondent
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Appeal Dismissal, Reinstatement of Appeal, Stay of Execution, Non Compliance With Court Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rosemary Njeri Muiruri
Appellant
Margaret Njeri Kimani
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Vacate or Discharge Dismissal Order
Legal Issues
- 1 Whether the court can reinstate an appeal that stood dismissed after non-compliance with a court order.
- 2 Whether the application to vacate or discharge the dismissal order is sustainable where the appeal is no longer in existence.
Ratio Decidendi
The court held that after the expiration of 30 days from 6th September, 2016, the appeal stood dismissed by operation of the court's prior order due to the appellant's failure to file the decree as directed. Since the appeal was no longer in existence at the time the application to vacate or discharge the dismissal order was filed, the court lacked jurisdiction to revisit or reinstate the proceedings. The application was not one for review, and there was no basis to reinstate orders that did not exist. The court emphasized that any further recourse available to the appellant lay in seeking legal advice from counsel, but the present application was unsustainable and had to be dismissed.
Court Disposition
application dismissed with costs to the respondent
Orders
- The application dated 27th March, 2017 is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 2 OF 2012
ROSEMARY NJERI MUIRURI …………….APPELLANT/APPLICANT
VERSUS
MARGARET NJERI KIMANI …………………………..RESPONDENT
RULING
There is a judgment in favour of the respondent delivered on 10th January, 2012. After that judgment an application for stay of execution was filed pending the hearing of the appeal. The record of appeal was filed on 20th September, 2013.
On 27th March, 2017 the appellant filed an application by way of Notice of Motion under Sections 1A, 1B and 3A of the Civil Procedure Act and Article 159 of the Constitution, to vacate or discharge the orders made on 6th September, 2016 wherein the appellant was ordered to file a decree within 30 days so that admission of the appeal may be recorded. In default the appeal was to stand dismissed. The record shows that the advocate for the appellant had been served with a hearing notice but did not attend court on 6th September, 2016.
The period of 30 days from 6th September, 2016 ended on or about 7th October, 2016. As at the time the application dated 27th March 2017 was being filed, the appeal going by the order of 6th September, 2016 was none existent as it stood dismissed. Any submissions therefore relating to an appeal that does not exist are unsustainable.
I have considered the submissions by counsel on record but reiterate that after the expiration of 30 days from 6th September, 2016, the court is unable to revisit these proceedings. This is not an application for review and I cannot reinstate orders that do not exist. If there is any recourse in law or fact then the appellant is in the safe hands of counsel for advice.
It is instructive to note that even in this application, the decree that was ordered to be filed has not been displayed. I have been left with no alternative but to dismiss the application with costs to the respondent.
Orders accordingly.
Dated, signed and delivered at Nairobi this 24th day of May, 2018.
A. MBOGHOLI MSAGHA
JUDGE