John Njathi Mwangi v Njathi Njoroge & 2 others [2005] KECA 198 (KLR)

The court engaged in a close reading of Order XLI. It accepted that an appeal lies as of right under Order XLII rule 1(1)(z) against a dismissal under Order XLI rule 31, but observed that the drafter provided a reinstatement mechanism only for appeals dismissed for default of attendance on the hearing date (rule 16). No analogous provision exists for rule 31(2) dismissals for want of prosecution. Because procedural rights must be founded on the rules that create them, the absence of a reinstatement provision meant the appellant could point to no legal basis for his application.

Having located no rule conferring a right to seek reinstatement of an appeal dismissed under rule 31(2), the court concluded that the application before the High Court had no legal foundation. An application made without any enabling provision is incompetent, and an order made on such an application is a nullity because the court below lacked jurisdiction to entertain it. The court accordingly treated the ruling as void, while at the same time holding that the appellant, whose application was itself incompetent, had no legal right capable of being infringed by its dismissal.

Even though the court characterised the order below as null and void, it did not allow the appeal or direct reinstatement. Its logic was that the appellant's reinstatement application was itself incompetent, so that dismissing an incompetent application infringed no legal right. With no right infringed, there was nothing for the Court of Appeal to vindicate; the appropriate course was therefore to strike the appeal out rather than allow or dismiss it, with costs following the event to the respondents.