[2017] KEHC 8096 (KLR)
The court found that the appellant failed to demonstrate good cause for reinstatement of the appeal. Despite claiming lack of service of the notice to show cause, the court was satisfied that proper notice had been given, as the judge who dismissed the appeal was satisfied with service. The appellant and his...
Source-derived case information.
- Citation
- [2017] KEHC 8096 (KLR)
- Parties
- Appellant: Salim Hamisi Mwanganga; Respondent: Matano Mohamed Kaka; Respondent: Umi K. Mohamed
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 117 of 2009
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application dismissed
- Judges
- AW Mwangi
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Service of Notice, Good Cause Requirement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salim Hamisi Mwanganga
Appellant
Matano Mohamed Kaka
Respondent
Umi K. Mohamed
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the appellant has shown good cause for the reinstatement of the dismissed appeal.
- 2 Whether proper notice was served on the appellant or his advocate prior to dismissal for want of prosecution.
Ratio Decidendi
The court found that the appellant failed to demonstrate good cause for reinstatement of the appeal. Despite claiming lack of service of the notice to show cause, the court was satisfied that proper notice had been given, as the judge who dismissed the appeal was satisfied with service. The appellant and his advocates were inactive for three years, making no effort to obtain the proceedings or judgment necessary for the appeal. The court held that such prolonged inaction and lack of diligence did not warrant the exercise of discretion to reinstate the appeal. The respondents were entitled to the benefit of the lower court's judgment, and the application to set aside the dismissal was...
Court Disposition
application dismissed
Orders
- The application dated 26th October, 2015 is dismissed with costs to the respondents/defendants.
Full Case Text
Judgment text and source record
28 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 117 OF 2009
SALIM HAMISI MWANGANGA.......APPELLANT
VERSUS
MATANO MOHAMED KAKA
UMI K. MOHAMED.....................RESPONDENTS
RULING
1. The application dated 26th October, 2015 seeks the following orders:-
(i) That the order for dismissal of the appeal herein made on 20th July, 2015 be set aside and the appeal be re-admitted for hearing; and
(ii) That the costs of the appeal (sic) be in the cause.
2. The application is anchored on the grounds on its face and the supporting affidavit of Salim Hamisi Mwanganga dated 28th October, 2015. The applicant attached copies of the letters dated 27th May, 2009, 11th March, 2010 and 28th February, 2012 to the said affidavit to show that his Advocates then, Ong’era Adembesa & Company Advocates had written to the Subordinate Court, to request for copies of the proceedings and Judgment to enable them to file their client’s appeal.
3. In his very brief submissions, Counsel for the applicant prayed for re-admission of the appeal that was dismissed on 20th July, 2015 and relied on the affidavit of his client in so doing.
The issue for determination is if the appellant should be accorded an opportunity to prosecute his appeal.
4. A perusal of the proceedings shows that on 20th July, 2015, the appellant’s appeal was dismissed under the provisions of order 42 rule 35(2) of the Civil Procedure Rules for want of prosecution.
The said provisions read as follows:-
“If within one year after the service of the Memorandum of appeal, the appeal shall not have been set down for hearing, the registrar shall on notice to the parties list the appeal before a Judge in chambers for dismissal.”
5. The Memorandum of appeal was filed on 19th June, 2009. The appellant’s Counsel pursued copies of proceedings by writing to the Senior Resident Magistrate once per year in the years 2009 and 2010, he then went to slumber throughout the year 2011, only to awake in the year 2012 when he sent the letter dated 28th February, 2012 to the Chief Magistrate, Civil Registry, Mombasa to request for copies of proceedings and judgment. After that, he relapsed into a deep slumber up to 20th July, 2015 when the appellant’s appeal was dismissed.
6. Although the appellant deposes in paragraph 7 of the affidavit that he or his Advocates on record were not served with the notice to attend court on 20th July, 2015 as required by law, this court has no cause to doubt that the applicant or his Advocate were served with the Notice to Show Cause why the suit should not be dismissed. The Judge who dismissed the appeal on 20th July, 2015 was satisfied that Notice had been given. Furthermore, the appellant and his Advocates took no action for three (3) years that is from the 28th February, 2012 upto 20th July, 2015 to ensure that they obtained copies of proceedings and Judgment with a view of preparing the record of appeal to facilitate the hearing of the appeal.
7. It is my considered view the applicant has not shown good cause why the appeal should be reinstated. The respondents/defendants are entitled to the fruits of the judgment of the lower court. The upshot of the foregoing is that the application dated 26th October, 2015 is dismissed with costs to the respondents/defendants.
DELIVERED, DATED and SIGNED at MOMBASA on this 27thday of January, 2017.
NJOKI MWANGI
JUDGE
In the presence of:-
Mr. Gathuku holding brief Mr. Asige for the applicant
No appearance for the respondent
Oliver Musundi Court Assistant