[2017] KEHC 5247 (KLR)
The court found that although the appeal had been dismissed for non-filing of submissions, the appellant's submissions were in fact filed on the same day as the dismissal. Given that the submissions were now on record and considering the interests of justice, the court exercised its discretion to reinstate the...
Source-derived case information.
- Citation
- [2017] KEHC 5247 (KLR)
- Parties
- Appellant: W. E. Tilley Muthaiga Limited; Appellant: Dominic Omondi Obuoyo; Respondent: Nelson Owen Ongayo (suing as the personal representative of the estate of Jacob Omoimbo Obuoyo deceased)
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 88 of 2013
- Procedural Posture
- Civil Appeal / Application for Review or Setting Aside of Dismissal Order
- Outcome
- Application allowed; appeal reinstated.
- Judges
- EM Muchoki
- Legal Topics
- Review of Court Orders, Setting Aside Dismissal, Filing of Submissions
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
W. E. Tilley Muthaiga Limited
Appellant
Dominic Omondi Obuoyo
Appellant
Nelson Owen Ongayo (suing as the personal representative of the estate of Jacob Omoimbo Obuoyo deceased)
Respondent
Procedural Posture
Civil Appeal / Application for Review or Setting Aside of Dismissal Order
Legal Issues
- 1 Whether the court should set aside or review its order dismissing the appeal for non-filing of submissions.
- 2 Whether the interests of justice require reinstatement of the appeal where submissions were filed contemporaneously with the dismissal.
Ratio Decidendi
The court found that although the appeal had been dismissed for non-filing of submissions, the appellant's submissions were in fact filed on the same day as the dismissal. Given that the submissions were now on record and considering the interests of justice, the court exercised its discretion to reinstate the appeal. The court emphasized that matters should be determined on their merits where possible, and that the respondent would not be prejudiced as costs were awarded. The appeal was reinstated, with directions for the respondent to file submissions and for the matter to proceed to judgment.
Court Disposition
Application allowed; appeal reinstated.
Orders
- The application is reinstated.
- The appeal is allowed and reinstated for hearing on the merits.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. 88 OF 2013
W. E. TILLEY MUTHAIGA LIMITED ….............................. 1ST APPELLANT/APPLICANT
DOMINIC OMONDI OBUOYO …........................................2ND APPELLANT/APPLICANT
VERSUS
NELSON OWEN ONGAYO(SUING AS THE PERSONAL REPRESENTATIVE OF THE
ESTATE OF JACOB OMOIMBO OBUOYO DECEASED)….......................RESPONDENT
RULING
Before me is an application by the applicant seeking to set aside or review the order of this Court dated 20th March 2017 which dismissed the applicant's appeal for reason that it had not filed its submissions. It is urged that the submissions were indeed filed on 20th March 2017 and that as this Court was dismissing the appeal the submissions were being filed in the registry.
The application is opposed. I have considered the grounds for the application and those in opposition. I have also noted that this is about the third time this appeal has been dismissed. However the submissions for the appellant are now on record and it is in the interest of justice that the appeal be heard on the merits. Accordingly the application is reinstated. The appeal is allowed but with an order that the applicant/appellant shall pay thrown away costs of Kshs.10,000/= (ten thousand shillings) to the respondent. The respondent is given leave to file his submissions within thirty days of this ruling and thereafter the appeal shall be mentioned on 27th June 2017 with a view to giving a date for judgment. It is so ordered.
E. N. MAINA
JUDGE
Ruling delivered in presence of Mr. Ouma Njoga Advocate holding brief for Mrs Obaga for the Respondent.
E. N. MAINA
JUDGE
25/5/2017