Abdala Aura Suleiman v Eliud Wekesa Waswa [2018] KEELC 4099 (KLR)
The bottom line
#The High Court in Kakamega refused to revive an appeal dismissed three years earlier, because the appellant's excuse for missing court was deemed frivolous.
What this practically means
#Executive summary
#Key legal issues
#Whether the dismissal of the appeal on 22nd July 2010 should be reviewed or set aside
The application was not merited; the applicant's reasons for non-attendance were frivolous and the dismissal was proper.
The applicant attributed his non-attendance to an assumption that the appeal could not proceed because the respondent was deceased. The court held the applicant did not take court processes seriously, gave no adequate explanation for non-attendance, and that review cannot be granted merely because a party acted on an assumption. Applying Utalii Transport and Ivita v Kyumbu, the delay was inexcusable and dismissal with costs followed.
Whether the delay in progressing the case was excusable
The delay was not excusable; justice requires diligence from the party who initiated proceedings.
Relying on Ivita v Kyumbu, the court applied the test of whether the delay is prolonged and inexcusable and whether justice would be done despite the delay. The applicant offered no real explanation for failing to attend court when the orders sought to be reviewed were made. The respondent's point that the applicant also failed to attend when the Chief Magistrate's Award was heard exparte reinforced the conclusion that the applicant was not serious with court processes.
Legal principles established
#- It is the primary duty of plaintiffs to take steps to progress their case since they are the ones who dragged the defendant to court.
- The test for excusing delay is whether the delay is prolonged and inexcusable, and whether justice will be done despite the delay.
Court orders
#- 1.The application dated 25th March 2013 is dismissed with costs
- Jurisdiction invoked
- Order 42 rule 21, Order 24 rules 3 and 7, Order 45 rules 1 and 2 of the Civil Procedure Rules 2010 (application for review, setting aside and substitution in a dismissed appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Abdala Aura Suleiman v Eliud Wekesa Waswa [2018] KEELC 4099 (KLR)", Case Analysis (2018). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4099/eng@2018-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.