[2023] KEHC 23200 (KLR)
The court found that the consent order recorded by the parties on 7/6/2022, which allowed the appeal with no order as to costs, had the effect of reinstating the trial court case (Milimani SCCC No. E121 of 2021). The judge reasoned that both parties, particularly the respondent, should have understood the...
Source-derived case information.
- Citation
- [2023] KEHC 23200 (KLR)
- Parties
- Applicant: John Peter Wairagu; Respondent: Mwiki PSV Sacco Society Ltd; Respondent: Joseph Kimani Muthure
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E670 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application for Declaration Regarding Reinstatement of Trial Court Case
- Outcome
- application allowed
- Judges
- JN Mulwa
- Legal Topics
- Reinstatement of Suit, Consent Orders, Appeal Allowance, Dismissal for Want of Prosecution
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
John Peter Wairagu
Applicant
Mwiki PSV Sacco Society Ltd
Respondent
Joseph Kimani Muthure
Respondent
Procedural Posture
Civil Appeal / Ruling on Application for Declaration Regarding Reinstatement of Trial Court Case
Legal Issues
- 1 Whether the consent order allowing the appeal automatically reinstated Milimani SCCC No. E121 of 2021 for hearing.
- 2 Whether the court can issue a declaration that the trial court case stands reinstated as a result of the consent order.
Ratio Decidendi
The court found that the consent order recorded by the parties on 7/6/2022, which allowed the appeal with no order as to costs, had the effect of reinstating the trial court case (Milimani SCCC No. E121 of 2021). The judge reasoned that both parties, particularly the respondent, should have understood the implications of consenting to allow the appeal, which was against the dismissal of the suit for want of prosecution. Since the consent order was neither set aside nor varied, it remained in force, and the trial court case was effectively revived for hearing. The court therefore granted the declaration sought by the applicant and directed that the trial court file be returned for further...
Court Disposition
application allowed
Orders
- Declaration issued that the consent order allowing the appeal reinstated Milimani SCCC No. E121 of 2021.
- The trial court file to be returned to the trial court for directions on further hearing of the suit.
Full Case Text
Judgment text and source record
28 paragraphs
Wairagu v Mwiki PSV Sacco Society Ltd & another (Civil Appeal E670 of 2023) [2023] KEHC 23200 (KLR) (Civ) (5 October 2023) (Ruling)
Neutral citation: [2023] KEHC 23200 (KLR)
Republic of Kenya
In the High Court at Nairobi (Milimani Law Courts)
Civil
Civil Appeal E670 of 2023
JN Mulwa, J
October 5, 2023
Between
John Peter Wairagu
Applicant
and
Mwiki PSV Sacco Society Ltd
1st Respondent
Joseph Kimani Muthure
2nd Respondent
Ruling
1. Before the Court is an application dated 13/10/2022. The Appellant who is the applicant herein seeks orders that a declaration do issue that in allowing the subject appeal, this Honourable Court automatically reinstated Milimani SCCC No. E121 of 2021 (formerly Civil Suit No. 1073 of 2020. The application is based on the grounds set out on the face of the application and Supporting Affidavit sworn on the 13/10/2022 by one Eddah Ngichare Simiyu, an Advocate acting for the Applicant.
2. In opposition to the application, Simon Mbirua Karangu, Chairperson of the 1st Respondent swore the Replying Affidavit on the 24/11/2022. Parties urged the Court to determine the application on their pleadings as filed.
3. A perusal of the Court proceedings before the Deputy Registrar (Hon. L. A. Mumassabba) on the 7/6/2022 in presence of the parties Advocates, show that by consent, the Appeal herein was allowed with no orders as to cost and was adopted as an order of the Court.
4. The Appeal was against the dismissal order by the trial Court on the 27/9/2021 in respect of Nairobi SCCC No. E121 of 2021. The Memorandum of Appeal is dated 15/10/2021.
5. It is the Applicants' prayer and submission that by dismissing the Appeal as aforestated, the Court effectively reinstated the trial Court’s case; and therefore seeks a declaration to that effect by the instant application.
6. Thereafter, on the 27/9/2021, the trial magistrate dismissed the case for want of prosecution. The Respondent purports to convince the Court that by the consent of the parties advocates dated 7/6/2022, the trial Court case was not reinstated for hearing as such order was not sought in the Memorandum of Appeal as filed, and therefore, as parties are bound by their pleadings, this Court cannot purport to extend the scope and effect of the consent orders obtained on the basis of the Memorandum of Appeal.
7. I have considered the above averments by both Counsel. On 7/6/2022, the application dated 28/7/2021 was listed for hearing. The applicant in the said application was an Intended Interested Party, who sought orders to be enjoined in the proceedings. It is clearly recorded that at 11. 40am, in the presence of the parties Advocates, the Court recorded that;“Parties have consented to the application dated 28/7/2021”, thus the Interested party was added as a party to the case before the trial court’’
8. Thereafter, having allowed the application and without being prompted by any of the parties, as the record shows, the trial Magistrate dismissed the case for want of prosecution which is the subject of the Appeal and the application before this court.With the above material facts in the parties knowledge, the Advocates proceeded to record a consent allowing the Appeal, effectively bringing to life the trial Court Case No. SCCC /E121 of 2021.
9. I have considered the Respondents' submissions in its interpretation of the simple consent order which it was party to. Before agreeing to record the Consent order, both parties, and particularly the Respondent ought to have known what the consent meant and what it would boil to. In my considered view, the consent order dismissed the appeal and reinstated the small claims court case for hearing. The Consent order dated 7/6/2022 is on record having not been set aside or varied, and therefore remains in force.
10. The Appeal having been allowed with no orders as to costs, it shall remain so, unless otherwise varied by an order of the Court.The upshot is therefore that the application dated 13/10/2022 is hereby allowed in terms of Prayer No. 1. The trial court file shall be returned to the trial Court for directions on the further hearing of the Suit.The respondent shall have costs of the application.Orders accordingly.
DATED, DELIVERED AND SIGNED IN NAIROBI THIS 5TH DAY OF OCTOBER 2023. JANET MULWAJUDGE