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ELCPartially AllowedNot stated in the judgment (application dated 14th October 2024; Memorandum of Appeal dated 19th December 2023)· [2025] KEELC 1135 (KLR)

Agutu & another (Suing as Administrators of the Estate of Andrea Abonyo Owoth - Deceased) v Oduor & 3 others (Civil Appeal E024 of 2023) [2025] KEELC 1135 (KLR)

High Court of Kenya (Siaya)
6 March 2025
2,611 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court reinstated a dismissed appeal, holding that the right to be heard outweighs procedural slips like filing delays or an incomplete record.

What this practically means

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Executive summary

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Richard Aloo Agutu and Charles Atieno Agutu, Appellants in an appeal before the High Court at Siaya, moved the court by Notice of Motion dated 14th October 2024 seeking to set aside an order of that court made the same day by Lady Justice A.Y. Koross dismissing their Memorandum of Appeal dated 19th December 2023 for want of prosecution, and to reinstate the appeal. The application was supported by an affidavit of their advocate, Ochanyo B. Onyango, who attributed the default to an e-filing system outage and difficulties logging into the virtual session on the dismissal date, adding that submissions dated 11th October 2024 were ready but unfiled. The Respondents, Israel Omondi Oduor and Francis Edward Okoth, opposed, contending that the record of appeal was incomplete, directions to file a supplementary record and submissions had been ignored, and that nothing was available to reinstate. In a ruling delivered on 6th March 2025, Lady Justice A.E. Dena noted the application had invoked the wrong provisions (Order 8 on amendment of pleadings) and identified Order 10 Rule 11 and Order 12 Rule 7 as the appropriate provisions. The court could not verify the claimed e-filing outage because the cited ICT communication was not annexed, but gave counsel the benefit of doubt as an officer of the court. Observing that submissions had been prepared before the dismissal date and the application was filed the very day of the dismissal, and that an incomplete record of appeal was a mere administrative issue, the court held that substantive justice and the right of access to justice on appeal prevailed. The court set aside the dismissal order, reinstated the appeal, directed filing and service of the supplementary record within three days, ordered costs of the application to abide the appeal, and provided that the appeal would automatically stand dismissed upon non-compliance.

Key legal issues

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01

Whether the dismissal of the appeal for want of prosecution should be set aside and the appeal reinstated

Holding

The dismissal was set aside and the appeal reinstated; the applicants' submissions were prepared before the dismissal date, counsel moved the court the same day, and the incomplete record was an administrative issue

Reasoning

The court found counsel had largely attended court and had prepared submissions dated 11th October 2024, three days before the dismissal. Counsel filed the present application on the same day as the dismissal. Although the court could not verify the claimed e-filing outage, it gave counsel the benefit of doubt as an officer of the court. Substantive justice and the constitutional right to access justice, including the right to appeal, outweighed procedural defaults. The incomplete record of appeal was held to be an administrative matter curable by directions.

p. 5
02

Whether the correct provisions were invoked for setting aside the dismissal order

Holding

The application cited Order 8 (amendment of pleadings) which was misplaced; Order 10 Rule 11 and Order 12 Rule 7 suffice for setting aside court orders

Reasoning

The court noted the application was brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 8 Rules 3, 5 and 8 and Order 51 Rules 1 and 2 of the Civil Procedure Rules. Order 8 concerns amendment of pleadings and was misplaced. The court identified Order 10 Rule 11 and Order 12 Rule 7 as the correct provisions for setting aside orders, indicating it would determine the motion on substance rather than reject it for the wrong provision.

p. 4

Legal principles established

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  • Discretion to set aside ex parte orders or orders of dismissal must be exercised judiciously with the main concern being to do justice to the parties
  • Rules of procedure are the handmaids of justice and should not be given a pedantic interpretation that denies parties justice
  • An incomplete record of appeal is an administrative issue that can be handled by way of further directions and should not cloud justice

Court orders

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  1. 1.The order of the court made on 14th October 2024 dismissing the appeal is set aside
  2. 2.The appeal is reinstated
  3. 3.The Supplementary Record of Appeal shall be filed and served within 3 days of the Ruling
  4. 4.Costs of the application shall abide the outcome of the appeal
  5. 5.Failure to comply with the filing direction, the Appeal shall automatically stand dismissed
Jurisdiction invoked
Inherent powers of the court under sections 1A, 1B and 3A of the Civil Procedure Act and Order 10 Rule 11 and Order 12 Rule 7 of the Civil Procedure Rules

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, "Agutu & another (Suing as Administrators of the Estate of Andrea Abonyo Owoth - Deceased) v Oduor & 3 others (Civil Appeal E024 of 2023) [2025] KEELC 1135 (KLR)", Case Analysis (2025). Not stated in the judgment (application dated 14th October 2024; Memorandum of Appeal dated 19th December 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1135/eng@2025-03-06

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