Express Kenya Limited v Autoxpress Limited [2017] KEHC 1256 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL  NO. 278  OF 2011

EXPRESS KENYA LIMITED ...............................................APPELLANT

- V E R S U S -

AUTOXPRESS LIMITED.................................................. RESPONDENT

RULING

1) On 7th June 2016, the Hon. Lady Justice Thuranira, dismissed this appeal for want of prosecution.  Express Kenya Ltd, the appellant herein has now taken out the motion dated 28. 6.2016 in which it sought for interalia the dismissal order to be set aside and for the appeal to be reinstated.  The motion is supported by the affidavit of Caroline Serem.

2) When served with the motion Autoxpress Ltd, the respondent herein, filed the replying affidavit of Ken Muchiri to oppose the application.  When the motion came up for intrpartes hearing, learned counsels recorded a consent order to  have the motion disposed of by written submission.

3) I have considered the grounds stated on the face of the motion together with facts deponed in the affidavit filed in support and against the applicant. I have also considered the rival written submissions. It is the submission of the appellant that the appeal was erroneously dismissed for want of prosecution yet the same had not been admitted to hearing.  It is also pointed out that the appellant had taken all reasonable steps to have the appeal ready for hearing save that the appeal could not be listed for hearing before being admitted to hearing.  The appellant’s advocate admitted that she as aware of the fact that the appeal had been listed for the hearing of a notice to show cause but she was unable to reach court in time to argue against the notice for dismissal because she was  held up in another court.

4) The respondent is of the view that the appeal having been dismissed under Order 42 rule 35 of the Civil Procedure Rules, there is no room for reinstatement of a dismissed appeal.  The respondent stated that the appellant was indolent hence it should not benefit from the discretion of this court.

5) After a careful consideration of the rival arguments, there is no dispute that the appeal was dismissed for want of prosecution in the absence of the parties. It is averred in the affidavit of Caroline Serem that the appeal was erroneously dismissed on the basis that the same had  not been fixed for hearing yet the appeal had not been admitted to  hearing.  It is clear from the record that this appeal has not actually been admitted to hearing.  M/s Serem avers that she could have actually explained to the trial judge that all the necessary steps had been taken to make the appeal ready for hearing but unfortunately she was held up in another court for a while and when she appeared before Lady Justice Thuranira she found the appeal had already been dismissed.  The   respondent did not controvert this vital averments.

6) I am convinced by the arguments put forward by the appellant that the dismissal order should be set aside.

7) Though the provisions of Order 42  rule 35 of the Civil Procedure Rules is silent as to whether or not an appeal which has been dismissed should be reinstated, I am of the humble view that the court retains its inherent power to  make such an order.

8) In the end the motion dated 28. 6.2016 is allowed in terms of prayers 1 and 2 with costs abiding the outcome of the appeal.

Dated, Signed and Delivered in open court this 10th day of November, 2017.

J. K. SERGON

JUDGE

In the presence of:

........................................  for the Appellant

................................... for the Respondent