[2017] KEHC 5079 (KLR)
The court found that there was no evidence of personal service of the notice of intended dismissal on the appellant, other than a general publication on the Judiciary website. Additionally, the lower court record was not available, and no directions had been given for the hearing of the appeal. The court held that...
Source-derived case information.
- Citation
- [2017] KEHC 5079 (KLR)
- Parties
- Appellant: Simion Oduke Msumba; Respondent: United Aryan EPZ Limited
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 150 of 2010
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- application allowed; dismissal order set aside; appeal reinstated
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Dismissal for Want of Prosecution, Reinstatement of Appeal, Service of Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Simion Oduke Msumba
Appellant
United Aryan EPZ Limited
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for want of prosecution should be set aside.
- 2 Whether the appellant was properly served with notice of intended dismissal.
- 3 Whether sufficient cause was shown for the delay in prosecuting the appeal.
Ratio Decidendi
The court found that there was no evidence of personal service of the notice of intended dismissal on the appellant, other than a general publication on the Judiciary website. Additionally, the lower court record was not available, and no directions had been given for the hearing of the appeal. The court held that no prejudice would be suffered by the respondent if the appeal was reinstated. Consequently, the court exercised its discretion to set aside the dismissal order and reinstate the appeal, emphasizing the importance of giving parties a fair opportunity to be heard.
Court Disposition
application allowed; dismissal order set aside; appeal reinstated
Orders
- The order made on 6th June, 2016 dismissing the appeal is set aside.
- The appeal is reinstated.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEAL NO. 150 OF 2010
SIMION ODUKE MSUMBA …………………..….. APPELLANT
VERSUS
UNITED ARYAN EPZ LIMITED ……...…………RESPONDENT
RULING
This appeal was dismissed on 6th June, 2016 for want of prosecution under Order 42 Rule 35 (2) of the Civil Procedure Rules. The application dated 28th June, 2016 seeks to set aside the said dismissal order. The reasons set out on the face of the application are that the appellant is desirous of prosecuting the appeal having already filed the record of appeal. The failure to have it prosecuted was for reasons that the appeal had not been admitted and the lower court record had not been availed. Counsel for the appellant has filed a supporting affidavit.
The respondent on the other hand filed grounds of opposition accusing the appellant of laches, and that no sufficient reason has been given for the delay in prosecuting the appeal. Notices dated 23rd May, 2016 were generally published by the deputy registrar giving notice to parties of the intended action. There is no proof however, that other than the publication in the Judiciary website that the appellant was served or that he was aware of the said notice.
More importantly however, even at the time of writing this ruling, no directions had been given and the lower court record is not part of this file. Additionally, no prejudice has been alleged shall befall the respondent if the order sought is granted.
I am inclined to allow the application which I hereby do. The order made on 6th June, 2016 is hereby set aside and the appeal reinstated. The deputy registrar shall facilitate the availability of the lower court file and place the appeal before a Judge in chambers for directions within 30 days from today.
The costs shall be on appeal.
Dated, signed and delivered at Nairobi this 6th Day of April, 2017.
A. MBOGHOLI MSAGHA
JUDGE