AAA v KAE (Civil Appeal E017 of 2024) [2025] KEHC 19610 (KLR) (8 April 2025) (Ruling) Neutral citation: [2025] KEHC 19610 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT GARISSA CIVIL APPEAL E017 OF 2024 JN ONYIEGO, J APRIL 8, 2025 BETWEEN AAA ............................................................................................................ APPELLANT AND KAE ........................................................................................................ RESPONDENT RULING 1. The background of the matter before this court stems out of a plaint filed by the respondent herein against the appellant seeking for dissolution of her marriage with the appellant and issuance of divorce certificate. After hearing both parties the Kadhi’s court at Garissa allowed the prayers sought vide its judgment delivered on 28-06-2024. 2. Undeterred, the appellant applied for review of the judgment on grounds that he needed time to seek medical intervention or be read the quran so that he could improve on his low sexual performance which was the main ground for divorce. However, the court was not satisfied with the grounds advanced for review hence dismissed the same vide its ruling dated 26-08-2024. 3. Subsequently, the appellant filed a notice of appeal on 21-09-2024 expressing his intention to appeal against the decision of the court. Despite filing the said notice of appeal, he did not file any memorandum of appeal. On 18-11-2024, the court fixed the matter for directions on 18-02-2025. On that day, there was no appearance by both parties. Consequently, the court struck out the notice of appeal. 4. Aggrieved by the said dismissal, the appellant filed a notice of motion dated 19th February 2025 seeking the court to review the orders dismissing his notice of appeal and reinstate the same. He stated that his absence was occasioned by his sickness and subsequent admission at Elwak Hospital. He attached medical records marked AAA as proof of his sickness. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19610/eng@2025-04-08 1
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5. Despite service of the said application, the respondent did not file any response. The application was orally argued with the applicant/appellant claiming that he will suffer damage and prejudice if the orders sought are not granted. That his non-attendance to court was not deliberate. 6. I have considered the application herein which is not opposed. The issue for determination is whether there is an appeal capable of being reinstated for hearing. I am alive to the fact that, an application which is not opposed does not automatically succeed and that the court hearing the matter must determine it on its own merits. See GideonSitelu Konchellah v Julius Lekakeny Ole Sunkuli & 2 others (2018) eKLR. 7. The orders sought in the application are discretionary in nature and the court has unfettered discretion to set aside an ex parte order where sufficient cause has been demonstrated. According to the Court of Appeal in the case of CMC Holdings Ltd v James Mumo Nzioki Civil Appeal No. 329 of 2001 [2004] eKLR, it was stated that this wide discretion of the court is intended to ensure that a litigant does not suffer injustice or hardship as a result of among other things an excusable mistake or error. The test which courts have set to determine whether or not to set aside ex-parte orders is “whether sufficient cause has been shown”. 8. What is before the court is basically an application seeking to reinstate a mere notice of appeal. Under section 79 G of the Civil Procedure Act, a party who is aggrieved with a decision from the lower court should lodge an appeal within 30 days. There is however a proviso that one can seek to file an appeal out of time if there are good reasons. In this case, there is no appeal filed within time nor is there an application seeking to appeal out of time. The appellant is confusing a notice of appeal to be a memorandum of appeal. 9. The notice of appeal is not an appeal to be heard substantively. Basically, there is nothing to reinstate for hearing. It will be an exercise in futility to allow the application. It will not achieve anything. For the above reasons stated, the application is hereby dismissed with no order as to costs. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 8TH DAY OF APRIL 2025. J. N. ONYIEGO JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19610/eng@2025-04-08 2
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