[2017] KEHC 6322 (KLR)
The court found that although the applicant had not complied with the order to deposit security for costs, this noncompliance only affected the stay of execution and not the right to prosecute the appeal. The court held that the mistake of counsel in failing to attend court and file submissions should not be visited...
Source-derived case information.
- Citation
- [2017] KEHC 6322 (KLR)
- Parties
- Appellant: Salma Kassim Said; Respondent: Wahib Saad Ali
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 32 of 2013
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application allowed; appeal reinstated; costs awarded to respondent
- Judges
- TW Cherere
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Mistake of Counsel, Security for Costs
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Salma Kassim Said
Appellant
Wahib Saad Ali
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the court should set aside its order dismissing the appeal for want of prosecution.
- 2 Whether the appeal should be reinstated for hearing despite noncompliance with the order for security for costs.
- 3 Whether the mistake of counsel is sufficient ground to reinstate the appeal.
Ratio Decidendi
The court found that although the applicant had not complied with the order to deposit security for costs, this noncompliance only affected the stay of execution and not the right to prosecute the appeal. The court held that the mistake of counsel in failing to attend court and file submissions should not be visited upon the applicant, and that the overriding objective of the law is to facilitate a hearing on the merits. Consequently, the court exercised its discretion to set aside the dismissal order and reinstate the appeal, subject to the applicant paying throw away costs to the respondent.
Court Disposition
application allowed; appeal reinstated; costs awarded to respondent
Orders
- The order dismissing the appeal for want of prosecution is set aside.
- The appeal is reinstated for hearing and disposal.
Full Case Text
Judgment text and source record
26 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 32 OF 2013
SALMA KASSIM SAID………………….APPELLANT/ APPLICANT
VERSUS
WAHIB SAAD ALI………………….……….....…........RESPONDENT
RULING
By a notice of motion dated 8. 8.16 brought under Order 12 rule 7 of the Civil Procedure Rules, Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; the appellant/applicant prays for orders:-
1. THAT this application be certified urgent and service thereof be dispensed with at the first instance
2. THAT this court be pleased to set aside its order dated 2. 11. 15 dismissing the suit for want of prosecution
3. THAT the appeal herein be unconditionally reinstated for full hearing and disposal
4. Any other order that this Honourable court may deem fit to grant
The application is based on the grounds among others among others that when the matter was mentioned on 28. 9.15 for filing of submissions, the appellant’s counsel was in another court and submissions had still not been filed as at 2. 11. 15 when the court made an order that the appeal had been abandoned.
The application is also supported by an affidavit sworn on 8. 8.16 by Ben AduolNyanga, advocate for the applicant who reiterates the grounds on the face of the application. Attached to the affidavit is a copy of his diary for 28. 9.15. .
The application is opposed on the grounds set out in a replying affidavit sworn by the respondent on 16. 11. 16. He avers that the applicant has not come to court with clean hands since he has not deposited Kshs. 100,000/- security for costs as ordered on 28. 11. 14.
I have considered the notice of motion in the light of the supporting affidavit and replying affidavit. Prayer 1 has already been spent.
The order for deposit of Kshs. 100,000/- as security for costs was meant to secure a stay of execution and not the prosecution of this appeal. The noncompliance means that the respondent can proceed to execute the judgment of the court but it does not deny the applicant his right of appeal.
The applicant’s counsel has not explained why he did not attend court on 2. 11. 15 when the appeal was dismissed. His mistake notwithstanding, it should be the court’s last resort to deny a party a chance to be heard on the basis of mistake of counsel.
Theoverridingobjectiveofthe lawis to facilitate the just, expeditious, proportionate and affordable resolution of disputes. Under the powers granted to this court by section 3A of the Civil Procedure Act, the notice of motion dated 8. 8.16 is allowed and the applicant is condemned to pay Kshs. 10,000/- to the respondent as throw away costs.
DATED AND DELIVERED THIS 28TH DAY OF APRIL 2017
T. W. CHERERE
JUDGE
Read in open court in the presence of-
Court Clerk Felix
Appellant/Applicant N/A
Respondent In Person