Joel Kilambu & 2 others v Shadrack Nkubitu Mugwika [2020] KEELC 1389 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the suit dismissed on 2/12/2019 for failure to file the record of appeal should be reinstated
Reinstatement granted, but on strict conditions including a 15-day deadline to file and serve the record of appeal and costs to the respondent
The court weighed the conduct of both parties. The delay was partly attributable to the appellants' former advocate, but the appellants also bore blame: the 3rd appellant was present when the dismissal order was made yet took some 45 days to move the court, and it was the respondent who had been reminding them to prosecute the appeal. Balancing the constitutional right to be heard under Article 50 and Article 159 against the respondent's established prejudice from delay and his advanced age, the court found it proper to grant another chance to be heard, but only on strict conditions to protect the respondent.
Whether a record of appeal had in fact been filed on 2/12/2019 as the appellants claimed
No such record could be traced on the court file; the claim was a myth
The 3rd appellant had averred that the record of appeal was in fact filed on 2/12/2019, the last day prescribed by the court's order. The court examined the file and found no trace of any such record, rejecting the assertion. The dismissal therefore stood on the footing that no record of appeal had been filed by the deadline, and the explanation of blame on former advocates did not absolve the appellants, who bore some degree of blame for the delay in seeking reinstatement.
Legal principles established
#- Reinstatement of a dismissed suit is a matter of judicial discretion dependent on the facts, guided by whether the delay is prolonged and inexcusable and whether justice can still be done despite the delay
- Article 159 and Article 50 of the Constitution on the right to be heard and substantive justice guide courts in deciding reinstatement of suits dismissed for want of prosecution
Court orders
#- 1.The suit is reinstated but the orders given on 18.7.2019 and discharged on 2.12.2019 shall still remain as discharged
- 2.The record of appeal to be filed and served within 15 days failure to which the appeal shall stand as dismissed
- 3.Appellants condemned to pay the costs of the application
- 4.Matter to be mentioned before the Deputy Registrar on 8.10.2020 to ascertain the availability of the lower court file
- Jurisdiction invoked
- Inherent discretion under Article 159 of the Constitution and the overriding objective of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joel Kilambu & 2 others v Shadrack Nkubitu Mugwika [2020] KEELC 1389 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 14th January 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1389/eng@2020-09-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.