China Wuyi Ltd v Margaret Wambui Waweru (suing as Legal Representative of the Estate of Paul Cheruiyot Deceased) [2022] KEHC 1660 (KLR)

Full Case Text

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KERICHO

CIVIL APPEAL NO.8 OF 2020

CHINA WUYI LTD.......................................................................................APPELLANT

VERSUS

MARGARET WAMBUI WAWERU (Suing as legal representative of the estate of

PAUL CHERUIYOT DECEASED).........................................................RESPONDENT

RULING

1. The appeal herein was dismissed for want of prosecution following an application filed by the Respondent dated 24/5/2021 which Application was not opposed by the Appellant/Respondent.

2. The Appellant subsequently filed an application dated 21/7/2021 seeking reinstatement of the appeal.

3. The parties filed written submission in the Application dated 21/7/2021 which I have duly considered.

4. The Appellant submitted that although the appeal was dismissed for non-attendance, the failure to attend the hearing of the application was not intentional as the hearing had not been diarized by the person in charge.

5. The Appellant also submitted that the non-attendance by the applicant was not so as to obstruct or delay justice, but that the failure to attend was a procedural technicality and the applicant should therefore not be denied a hearing due to procedural technicalities.

6. The appellant further submitted that the right to a hearing has been protected under the Constitution of Kenya, 2010 and that the appellant’s appeal should be accorded a chance to be heard on merit, as the appellant will suffer loss if the appeal is not heard inter-parties.

7. The appellant relied on the following cases:

(a) BELINDA MURAI & OTHERS VERSUS AMOS WAINAINA (1978) KLR 278;

(b) HAM VERSUS SOS (2021) eKLR;

(d) PHILIP CHEMWOLO & ANOTHER VERSUS AUGUSTINE KUBEDE (1982-88) KAR 103 AT 1040; and

(e) RICHARD NCARPI LEIYAGU VERSUS INDEPENDENT ELECTROL BOUNDARIES COMMISSION & ANOTHER (2013) eKLR.

8. The Respondent on the other hand submitted that the appellant’s application is only meant to deny her the fruits of her judgement, and that justice delayed is justice denied. The respondent also submitted that Article 159(2) (b) of the Constitution demands that Justice shall not be delayed.

9. The Respondent further submitted that although the Appellant had stated that he was keen on having the appeal heard he was unable to have the proceedings from the lower court, but that he has not demonstrated he had made any effort for a period of one and a half years to obtain those proceedings from the court and that the appellant has not demonstrated the reason for delay in executing the appeal.

10. The respondent relied on the following case:

(a) PETER KIPKURUI CHEMOIWO VERSUS CHEPSERGON ELDORET COURT OF APPEAL, CIVIL APPEAL NO. 58 OF 2018; AND

(b) SAVINGS AND LOANS LIMITED VERSUS SUSAN WANJIRU MURITU, NAIROBI MILIMANI HCCC 397 OF 2002.

11. I find that no record of appeal has been filed to date. After reinstating the appeal what next?

12. There is no evidence that the Appellant is desirous to prosecute this appeal.

13. The Application dated 21/7/2021 seeking reinstatement of the appeal herein lacks in merit and I accordingly dismiss it with no orders as to costs.

Delivered, dated and signed at Kericho this 4th day of March, 2022.

A. N. ONGERI

JUDGE