[2004] KEHC 734 (KLR)
The court found that the explanation provided by the appellant, namely that his counsel did not inform him of the hearing date, was not credible or satisfactory. The appellant's counsel was served with the hearing notice well in advance and remained on record for the appellant. No affidavit was sworn by the advocate...
Source-derived case information.
- Citation
- [2004] KEHC 734 (KLR)
- Parties
- Appellant: Sospeter Gesora Kibanga; Respondent: John Atuti Nyandika
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 12 of 2002
- Procedural Posture
- Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal; Application for Stay of Execution
- Outcome
- application dismissed with costs
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Prosecution, Stay of Execution, Service of Hearing Notice
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Sospeter Gesora Kibanga
Appellant
John Atuti Nyandika
Respondent
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal; Application for Stay of Execution
Legal Issues
- 1 Whether the order dismissing the appeal for non-prosecution should be set aside and the appeal reinstated.
- 2 Whether a stay of execution of the lower court's decree should be granted.
Ratio Decidendi
The court found that the explanation provided by the appellant, namely that his counsel did not inform him of the hearing date, was not credible or satisfactory. The appellant's counsel was served with the hearing notice well in advance and remained on record for the appellant. No affidavit was sworn by the advocate to confirm the alleged failure to inform the appellant, nor was any explanation given for the advocate's own absence on the hearing date. The court held that there was no good explanation for the non-appearance of both the appellant and his counsel. The application to set aside the dismissal and reinstate the appeal was therefore without merit and was dismissed with costs.
Court Disposition
application dismissed with costs
Orders
- The application to set aside the dismissal and reinstate the appeal is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO.12 OF 2002
SOSPETER GESORA KIBANGA ………………………………. APPELLANT
VERSUS.
JOHN ATUTI NYANDIKA …………………………………….. DEFENDANT
RULING
The applicant/appellant seeks court to set aside an order issued dismissing the appeal and reinstate the same for hearing. He also prays for stay of execution of the lower court’s decree.
The appeal was fixed for hearing by the respondent on 19/2/04. M/S. Nyariki & Co Advocates were then, and even now, on record for the appellant. They were served with the hearing on 5/4/04. However on the hearing day neither the appellant nor the counsel was in court. The appeal was therefore dismissed for non-prosecution.
Mr. Soire who argued the application, having come on record to act together with Mr. Nyariki said that the appellant was not informed by the counsel about the hearing date. That is why he was not in court.
The application was opposed.
I have considered the application and find it has no merit. The explanation by the applicant through his affidavit that his counsel did not inform him of the hearing date is not credible and is not satisfactory. There is no denying that his counsel was served with the hearing on 5/4/04 – one month and 15 days before the hearing date. M/S. Nyariki & Co., Advocates are still on record as appearing for the applicant in this appeal. The advocate has not sworn an affidavit to confirm that indeed he did not inform the appellant about the hearing date. He further has not explained why he himself did not come to court on 19/5/04 to prosecute the appeal even in the absence of the appellant.
This is an appeal and the appellant was not expected to give evidence or say anything during the hearing. It was his counsel who would have argued the appeal. He has not said where he is. Thus though mistake of counsel should not be vested on a party, there is no good explanation why the two of them did not appear in court. It seems to me that Mr. Nyariki, who is still on record, is trying to hide behind another counsel. There was nothing which would have been easier than to swear that indeed he did not inform the appellant of the hearing date. That he fears to depone to such facts makes me believe that it is not a true fact.
I therefore find that the application has no merit. The same is dismissed with costs.
Dated 10th November 2004.
KABURU BAUNI
JUDGE
10/11/04
Mr. Mongare for the Respondent.
N/A for applicant.
KABURU BAUNI
JUDGE.