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ELCDismissedNot stated in the judgment· [2018] KEELC 1900 (KLR)

Duncan Kamau King’ora v Nimrod Irungu Gatambia & 3 others [2018] KEELC 1900 (KLR)

High Court of Kenya
20 September 2018
JKJ G Kemei
767 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicant filed a Notice of Motion dated 3/9/2015 under Order 12 Rule 7, Orders 51, Order 45 Rules 2 and 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act and Articles 50 and 159(2) of the Constitution, seeking reinstatement of an appeal that had been dismissed for want of prosecution and non-attendance on 26/6/2015 following a Notice to Show Cause under Order 42 Rule 35. The appeal had been filed on 18/6/2010 and admitted on 7/6/2011 but lay unprosecuted for five years. The application was supported by an affidavit of Samson W Ndegwa, Advocate, who attributed his non-attendance to other commitments in Nairobi and to a holding counsel delayed by a motor vehicle breakdown, and explained the prosecutorial delay by his illness, evidenced by doctor's letters. The Respondent, through Titus Timothy Muthui Kimani, opposed the application, contending that the Applicant had concealed a parallel suit, HCCC No 54 of 2009, challenging the same judgment, and was guilty of laches. The court found the medical evidence covered only February to May 2015 and could not explain the five-year lull; the absence on the hearing date was due to counsel's busy schedule; the holding counsel swore no affidavit; no written notice of non-attendance was given; and the application itself was filed some three months after dismissal, making the delay inordinate with no sufficient cause shown. The application was dismissed with costs by J G Kemei, Judge, on 20 September 2018 at Murang'a.

Key legal issues

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01

Whether the medical and logistical reasons advanced explained the delay

Holding

The doctor's letters covered only February to May 2015 and could not explain the five-year delay in setting down the appeal; the absence on the hearing date was attributed to counsel's busy schedule, and the holding-over counsel did not swear an affidavit

Reasoning

The court found the appeal had lain dormant for five years after admission. The illness evidence covered only a few months of 2015. Counsel's claim of another commitment in Nairobi and of a holding counsel delayed by a motor vehicle breakdown was unsupported by any affidavit from that counsel, and no written notice of non-attendance was given to the court.

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02

Whether the reinstatement application was filed timeously

Holding

The application to review the dismissal order was filed about three months after the dismissal, and the delay was inordinate

Reasoning

The court observed that the dismissal occurred on 26/6/2015 and the application was not lodged until 3/9/2015. Combined with the lack of any sufficient explanation for the five-year prosecutorial lull and the unsupported reasons for non-attendance, this rendered the delay inordinate and the application devoid of merit.

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Legal principles established

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  • A litigant seeking reinstatement of an appeal dismissed for want of prosecution must give sufficient reasons for both the delay in prosecuting the appeal and the absence on the hearing date

Court orders

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  1. 1.The Notice of Motion dated 3/9/2015 seeking reinstatement of the appeal was dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 12 Rule 7
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 45 Rule 2 & 3
  • Civil Procedure RulesOrder 42 Rule 35
  • Civil Procedure Act, Cap 21Section 3A
  • Constitution of Kenya, 2010Article 50
  • Constitution of Kenya, 2010Article 159(2)
Jurisdiction invoked
Order 12 Rule 7, Orders 51 and Order 45 Rule 2 & 3 of the Civil Procedure Rules, Section 3A of the Civil Procedure Act, and Articles 50 and 159(2) of the Constitution of Kenya, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Duncan Kamau King’ora v Nimrod Irungu Gatambia & 3 others [2018] KEELC 1900 (KLR)", Case Analysis (2018). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1900/eng@2018-09-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.