[2024] KEHC 448 (KLR)
The court found that the dismissal of the appeal on January 23, 2024, was occasioned by an administrative error on the part of the court assistant, who issued an incorrect date to the appellant's counsel. As a result, the appellant's counsel was not heard through no fault of his own. The court held that it would be...
Source-derived case information.
- Citation
- [2024] KEHC 448 (KLR)
- Parties
- Appellant: Watu Credit Limited; Appellant: Joseph Ouma Omanyo; Respondent: Juliana Orwa Oracha; Respondent: Car & General (Trading) Limited
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal E059 of 2023
- Procedural Posture
- Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
- Outcome
- Appeal reinstated; dismissal order set aside; directions issued for further submissions.
- Judges
- RE Aburili
- Legal Topics
- Reinstatement of Appeal, Dismissal for Non Compliance, Court Errors, Right to Be Heard
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Watu Credit Limited
Appellant
Joseph Ouma Omanyo
Appellant
Juliana Orwa Oracha
Respondent
Car & General (Trading) Limited
Respondent
Procedural Posture
Civil Appeal / Ruling on Application to Set Aside Dismissal and Reinstate Appeal
Legal Issues
- 1 Whether the dismissal of the appeal for non-compliance with court directions should be set aside due to an error by the court assistant.
- 2 Whether the appellants should be heard on the merits of their appeal after filing the record of appeal and submissions.
Ratio Decidendi
The court found that the dismissal of the appeal on January 23, 2024, was occasioned by an administrative error on the part of the court assistant, who issued an incorrect date to the appellant's counsel. As a result, the appellant's counsel was not heard through no fault of his own. The court held that it would be unjust to uphold the dismissal in such circumstances, especially since the record of appeal and submissions had been filed and no prejudice would be suffered by the respondents. Accordingly, the court exercised its discretion to set aside the dismissal order, reinstate the appeal, and admit the filed record of appeal, thereby ensuring the appellant's right to be heard is...
Court Disposition
Appeal reinstated; dismissal order set aside; directions issued for further submissions.
Orders
- The order of 23rd January 2024 dismissing the appeal for non-compliance is set aside.
- The appeal is reinstated for hearing.
Full Case Text
Judgment text and source record
27 paragraphs
Watu Credit Limited & another v Oracha & another (Civil Appeal E059 of 2023) [2024] KEHC 448 (KLR) (24 January 2024) (Ruling)
Neutral citation: [2024] KEHC 448 (KLR)
Republic of Kenya
In the High Court at Kisumu
Civil Appeal E059 of 2023
RE Aburili, J
January 24, 2024
Between
Watu Credit Limited
1st Appellant
Joseph Ouma Omanyo
2nd Appellant
and
Juliana Orwa Oracha
1st Respondent
Car & General (Trading) Limited
2nd Respondent
(Being an appeal from the Judgment of Principal Magistrate Hon. S. N. Telewa, delivered on 29th March 2023 in Kisumu CMCC No. E567 of 2021)
Ruling
1. I have heard Mr. Karanja Advocate for the Appellant who has been in court since morning and read the notice issued on November 27, 2023 which gave today as the date for directions contrary to the handwritten record of the court which gave January 23, 2024.
2. The Court Assistant, Mr. Fred Osir has written his statement on the matter indicating that he inadvertently gave January 24, 2024 instead of January 23, 2024.
3. It is therefore obvious that this court condemned the appellant’s counsel unheard yesterday because of the mistake on the part of the Court Assistant who issued an erroneous date.
4. Now that the appellant’s counsel has explained to court the predicament he had and even filed the record of appeal and submissions, I hereby set aside the order of 23rd January 2024 dismissing this appeal for non-compliance with court directions and reinstate the appeal to hearing as no prejudice will be occasioned to the respondent.
5. I vacate the order closing the file. I further admit the filed record of appeal on record as duly filed and direct the respondent to file submissions within ten (10) days of today.
6. Mention on February 12, 2024 to confirm the filing of submissions by the Respondent’s counsel who shall be served with these directions given by the court in this brief Ruling.
7. I so order.
DATED, SIGNED AND DELIVERED AT KISUMU THIS 24TH DAY OF JANUARY, 2024R. E. ABURILIJUDGE