[2017] KEHC 6123 (KLR)

[2017] KEHC 6123 (KLR)

The court found that it was not clear from the record whether the appellant was served with the requisite notice to show cause before the appeal was dismissed for want of prosecution, as required by Order 42 rule 35(2) of the Civil Procedure Rules. The respondent did not provide evidence that such notice was served....

Source-derived case information.

Citation
[2017] KEHC 6123 (KLR)
Parties
Appellant: Syrup Distributors Limited; Respondent: Loki Developers
Court
High Court
Court Station
High Court at Nairobi (Milimani Commercial Courts)
Jurisdiction
Kenya
Judgment Date
5 May 2017
Case Number
Civil Appeal Appeal166 of 2008
Procedural Posture
Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal
Outcome
Application allowed; dismissal order set aside; appeal reinstated with conditions.
Judges
LM Njuguna
Legal Topics
Dismissal for Want of Prosecution, Reinstatement of Appeal, Judicial Discretion, Delay in Prosecution
Source Language
english
Civil Procedure Dismissal for Want of Prosecution Reinstatement of Appeal Judicial Discretion Delay in Prosecution

Source-derived case record

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 8 Party arguments 2
Sign in to unlock

Parties

Syrup Distributors Limited

Appellant

Loki Developers

Respondent

Procedural Posture

Civil Appeal / Application to Set Aside Dismissal and Reinstate Appeal

Legal Issues

  1. 1 Whether the appellant was served with notice to show cause before the appeal was dismissed for want of prosecution.
  2. 2 Whether the appellant has provided sufficient reasons to warrant the court's discretion to set aside the dismissal and reinstate the appeal.
  3. 3 Whether the delay in prosecuting the appeal was inordinate and inexcusable.

Ratio Decidendi

The court found that it was not clear from the record whether the appellant was served with the requisite notice to show cause before the appeal was dismissed for want of prosecution, as required by Order 42 rule 35(2) of the Civil Procedure Rules. The respondent did not provide evidence that such notice was served. While there was a significant delay in prosecuting the appeal, the court held that dismissal of a suit is a drastic measure and should only be taken where it is just and feasible. The respondent failed to demonstrate any prejudice that would result from reinstatement of the appeal. Applying the principles from IVITA v KYUMBU and UTALII TRANSPORT, the court exercised its...

Court Disposition

Application allowed; dismissal order set aside; appeal reinstated with conditions.

Orders

  • The order made on 18th June, 2015 dismissing the appeal is set aside and the appeal is reinstated for hearing.
  • The appeal shall be prosecuted within 90 days from the date of this ruling, failing which it shall stand dismissed.