[2022] KEHC 2985 (KLR)
The court found that although a notice to show cause was issued, there was no evidence on record that the appellants were served with the notice. In the absence of proof of service, the dismissal order made on 9th November, 2021 could not stand. The court therefore vacated the dismissal order and reinstated the...
Source-derived case information.
- Citation
- [2022] KEHC 2985 (KLR)
- Parties
- Appellant: Sasah General Merchants Ltd; Appellant: Samwel Odhiambo Akumu; Respondent: Caren Achieng Ouma
- Court
- High Court
- Court Station
- High Court at Homa Bay
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 22 of 2020
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Application allowed in part; dismissal order set aside; appeal reinstated subject to conditions.
- Judges
- KW Kiarie
- Legal Topics
- Reinstatement of Appeal, Service of Notice, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sasah General Merchants Ltd
Appellant
Samwel Odhiambo Akumu
Appellant
Caren Achieng Ouma
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the appellants were properly served with the notice to show cause before dismissal of the appeal.
- 2 Whether the appeal should be reinstated for hearing on its merits.
Ratio Decidendi
The court found that although a notice to show cause was issued, there was no evidence on record that the appellants were served with the notice. In the absence of proof of service, the dismissal order made on 9th November, 2021 could not stand. The court therefore vacated the dismissal order and reinstated the appeal. However, the court noted that the typed proceedings had already been forwarded to the court, and thus the appellants' explanation for delay was not entirely accurate. The appellants were given 14 days to file the record of appeal, failing which the respondent would be at liberty to move the court.
Court Disposition
Application allowed in part; dismissal order set aside; appeal reinstated subject to conditions.
Orders
- The orders of 9th November, 2021 are set aside.
- The appeal is reinstated for hearing and disposal on merits.
Full Case Text
Judgment text and source record
23 paragraphs
Sasah General Merchants Ltd & another v Ouma (Civil Appeal 22 of 2020) [2022] KEHC 2985 (KLR) (22 June 2022) (Ruling)
Neutral citation: [2022] KEHC 2985 (KLR)
Republic of Kenya
In the High Court at Homa Bay
Civil Appeal 22 of 2020
KW Kiarie, J
June 22, 2022
Between
Sasah General Merchants Ltd
1st Applicant
Samwel Odhiambo Akumu
2nd Applicant
and
Caren Achieng Ouma
Respondent
Ruling
1. The appellants/applicants moved the court by way of Notice of Motion dated 10th January, 2022. The application is brought under sections 1A, 1B & 3A,63 & 95 of the Civil Procedure Act, Order 17 Rule 2(3), Order 42 Rule 21, Order 51 Rule 6 Civil Procedure Rules, Articles 22 (1), 27 (1), 47, 48, 50, 159 (2), 165 & 258 of the Constitution of Kenya. The applicants are seeking the following orders:a.That the matter be certified urgent and be heard in the first instance and/or on priority basis. [Spent]b.That this court be pleased to set aside the orders dated and made on 9th November, 2021. c.That the applicants’ appeal be reinstated for hearing and disposal on merits.d.That costs be in the cause.
2. The application is premised on groundsa.That the applicants were not served with the notice to show cause why the suit ought not to be dismissed.b.That the appeal has taken long to set down for hearing due to non-supply of typed proceedings.
3. The application was opposed by the respondent who contended that the application lacks merit.
4. I have checked the record and though the notice to show cause was issued, there was no return of service to indicate whether the appellants were served. For this reason I will vacate the orders of 9th November, 2021.
5. Though appellants/applicants have contended that they have failed to file the record of appeal for failure to be supplied with the typed proceedings, this position may not be correct. Our record show that the original file was forwarded to this court on 30th March, 2021 with typed proceedings. I will therefore give the appellant 14 days within which to file the record of appeal failure to do so, the respondent may be at liberty to move the court.
6. Costs be in the cause.
DELIVERED AND SIGNED AT HOMA BAY THIS 22ND DAY OF JUNE, 2022KIARIE WAWERU KIARIEJUDGE