[2019] KEHC 5840 (KLR)
The court found that although the applicant attributed the delay and non-compliance to the disappearance and destruction of the lower court file, the record showed the reconstructed file was available by the time the court ordered the filing of the supplementary record of appeal. The supplementary record was...
Source-derived case information.
- Citation
- [2019] KEHC 5840 (KLR)
- Parties
- Appellant: Sasini Tea & Coffee Ltd; Respondent: Peter Aluoch Wangwa
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 59 of 2003
- Procedural Posture
- Civil Appeal / Ruling on Application for Reinstatement of Appeal
- Outcome
- application allowed; appeal reinstated subject to conditions
- Judges
- LM Njuguna
- Legal Topics
- Reinstatement of Appeal, Non Compliance With Court Orders, Supplementary Record of Appeal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sasini Tea & Coffee Ltd
Appellant
Peter Aluoch Wangwa
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Reinstatement of Appeal
Legal Issues
- 1 Whether the order dismissing the appeal should be set aside and the appeal reinstated.
- 2 Whether the applicant has provided sufficient explanation for non-compliance with the court's directions.
- 3 Whether the delay in filing the supplementary record of appeal and the application for reinstatement is excusable.
Ratio Decidendi
The court found that although the applicant attributed the delay and non-compliance to the disappearance and destruction of the lower court file, the record showed the reconstructed file was available by the time the court ordered the filing of the supplementary record of appeal. The supplementary record was eventually filed, albeit out of time, and the application for reinstatement was not promptly made. However, as the motion was unopposed and considering the age of the appeal, the court exercised its discretion to allow the application, reinstating the appeal but imposing a strict timeline for its prosecution. The court emphasized that compliance with its orders is mandatory, but in...
Court Disposition
application allowed; appeal reinstated subject to conditions
Orders
- The order issued on 5th November, 2018 is set aside.
- The appeal is reinstated for hearing.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 59 OF 2003
SASINI TEA & COFFEE LTD.....................................APPELLANT/APPLICANT
VERSUS
PETER ALUOCH WANGWA............................................................RESPONDENT
R U L I N G
1. This ruling relates to the Notice of Motion dated 11th March, 2019 brought forth by the appellant/applicant herein. The same is supported by the grounds stated on its body and the facts deponed to in the affidavit of Kelvin Gitonga Mutegi. The applicant is seeking to have the order issued by this court on 5th November, 2018 set aside and the appeal consequently reinstated for hearing.
2. The explanation offered by the abovementioned deponent, being the advocate for the applicant, is that the failure to file the supplementary record of appeal as per this court’s directions of 27th July, 2018 was occasioned by the disappearance of the lower court file from the registry at Gatundu Law Courts.
3. The said deponent further explained that there had recently been a fire incident at the aforesaid Law Courts resulting in the destruction of a number of files including the relevant lower court file. Resultantly, the advocate was forced to apply for its reconstruction.
4. It is also his assertion that the applicant was unable to file its application for reinstatement in good time for the reason that the appeal file could not be traced from the appeal’s registry and only resurfaced recently, carefully adding that the respondent will suffer no prejudice should the orders sought be granted.
5. I have considered the grounds set out in the Motion as well as the facts appearing on the affidavit in support thereof. Upon perusal of the record, I am able to ascertain that the lower court file was reconstructed and forwarded to the deputy registrar vide a letter received on 10th July, 2018.
6. From the foregoing, it is clear that the reconstructed file was available as at 27th July, 2018 when this court ordered the applicant to file a supplementary record of appeal. Furthermore, the record shows that on the said 27th of July the applicant mentioned to this court that its appeal was not ready for the reason that the decree was not ready.
7. When the matter came up again before this court on 5th November, 2018 the appellant notably absent and there was non-compliance with the order of 27th July, 2018. Moreover, there is nothing in the record to indicate the appeal file went missing soon thereafter as claimed by the applicant.
8. Suffice it to say that I have observed that the supplementary record of appeal was filed on 13th September, 2018 albeit outside the timelines ordered by this court. I have also considered that the Motion stands unopposed.
9. In the premises, I will exercise my discretion in allowing the Motion as prayed. However, given that this is quite an old appeal, I hereby order the appellant/applicant to prosecute the same within 60 days from today, failing which the appeal shall stand dismissed. Costs shall abide the outcome of the appeal.
Dated, signed and delivered at NAIROBI this 20TH day of JUNE, 2019.
………………….
L. NJUGUNA
JUDGE
In the presence of:
……………………………. for the Appellant/Applicant
……………………………. for the Respondent