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ELRCAllowedAppeal No E064 of 2023· [2025] KEELRC 922 (KLR)

Ahmed v Akuno (Appeal E064 of 2023) [2025] KEELRC 922 (KLR)

High Court of Kenya
24 March 2025
2,449 words in judgment
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The bottom line

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Kenya's High Court reinstated an appeal dismissed for delay, ruling that documented follow-ups and a genuine mistake by counsel explained the delay.

What this practically means

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Executive summary

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The applicant, by Notice of Motion dated 4th October, 2024 under Articles 50 and 159 of the Constitution and Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, sought setting aside of an order of 2nd October, 2024 dismissing his appeal for want of prosecution and reinstatement of the appeal. He argued that on 2nd October 2024 counsel logged into Justice Baari's virtual session which showed no activity owing to the Judge's transfer, learned of the dismissal only when he joined the correct court, and that delay in filing the Record of Appeal was caused by the unavailability of typed proceedings, evidenced by letters to the Registry between January and August 2024. The respondent opposed, contending the application was an abuse of process, that the appellant had not complied with an order to deposit security, had been given ample time, and had lost interest having settled most of the decretal sum. The court affirmed its discretion under Order 42 rule 35 to dismiss unprosecuted appeals but held each case turns on its own merits. It found the applicant's follow-up letters demonstrated diligence; that the difficulty in obtaining typed proceedings, including in Kisumu, was real; that counsel's absence was genuinely explained by the judicial transfer; and that no prejudice to the respondent was demonstrated. The court held the delay, though prolonged, was explained and the scale of justice tilted in the applicant's favour. The Motion was allowed: the dismissal order of 2nd October 2024 was set aside, the appeal reinstated, the Record of Appeal to be filed within 14 days, with each party bearing their own costs.

Key legal issues

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01

Whether the dismissal of the appeal for want of prosecution on 2nd October, 2024 should be set aside

Holding

The dismissal order was set aside and the appeal reinstated because the delay was explained by verifiable evidence of follow-ups for typed proceedings, the applicant acted promptly, and no prejudice to the respondent was demonstrated.

Reasoning

The applicant attached letters to the Registry dating from 22nd January 2024 to 5th August 2024 showing continued pursuit of typed proceedings, a known systemic challenge in registries including Kisumu. The respondent produced no evidence that proceedings could have been obtained earlier or that he would suffer prejudice. Counsel also acted promptly after the dismissal, filing the application on 4th October 2024, two days after learning of it.

p. 4
02

Whether failure by counsel to attend the mention on 2nd October, 2024 was fatal

Holding

The court respectfully disagreed with the respondent's contention that counsel's presence would have made no difference; counsel's absence was attributable to the trial Judge's transfer and confusion over court sessions, and mistakes of counsel should not lightly be visited on the client.

Reasoning

The deponent logged into Justice Baari's virtual session which showed no activity because the Judge had been transferred; upon learning the correct court he was informed of the dismissal. The court found this account true and noted the advocate is the mouthpiece of the client whose presence demonstrates resolve to prosecute the case.

p. 4

Legal principles established

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  • A court has discretion to dismiss an appeal under Order 42 rule 35 either at the instance of the respondent if not set down after 3 months of directions, or on the registrar's notice after one year of service of the Memorandum of Appeal.
  • Courts' discretion to set aside an ex parte judgment or order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay.
  • Each case must be decided on its own merits and circumstances even where judicial sentiments on dismissal of stale appeals are agreeable.
  • The presence of an advocate in court on behalf of the client is critical and demonstrates the client's resolve to prosecute the case to conclusion.

Court orders

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  1. 1.The court Order made on 2nd October, 2024 dismissing the appeal herein be and is hereby set aside and the appeal reinstated for hearing and determination
  2. 2.The applicant/Appellant shall file the Record of Appeal within 14 days
  3. 3.Parties shall bear their own costs

Authorities

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Legislation

  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 159(2)(d)
  • Constitution of KenyaArticle 48
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 42 Rule 21
  • Civil Procedure RulesOrder 42 Rule 13(4)
  • Civil Procedure RulesOrder 42 Rule 35(2)
  • Civil Procedure RulesOrder 21 Rule 1

Cases cited (8)

  • John Nahashon Mwangi V Kenya Finance Bank Ltd (in liquidation)
    [2015] eKLR
  • Bernard Muthee & Another v Anita Kamba Mwiti
    [2021] eKLR
  • Ivita V Kyumbu
    [1975] EA 441
  • Elem Investment Ltd V John Mokora Olowama
    [2015] eKLR
  • Abraham Mukhola Asitsa V Silver Style Investment Co. Ltd
    [2020] KEHC 965 (KLR)
  • Richard N. Charpi Leiyangu V I.E.B.C & 2 Others
  • Belinda Murai & Others V Amos Wainaina
    [1978] LLR 2782
  • Phillip Chemwolo & Another V Augustine Kubede
    [1982-88] KAR 1040
Jurisdiction invoked
Articles 50 and 159 of the Constitution of Kenya; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 51 Rule 1 and Order 42 Rule 21 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, "Ahmed v Akuno (Appeal E064 of 2023) [2025] KEELRC 922 (KLR)", Case Analysis (2025). Appeal No E064 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2025/922/eng@2025-03-24

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