Richard Onyinge v David Kirimojo [2021] KEHC 9576 (KLR)

REPUBLIC OF KENYA.

IN THE HIGH COURT OF KENYA AT BUNGOMA.

CIVIL APPEAL NO. 35 OF 2019.

(An Appeal arising from the Ruling the SPM’s Court at Kimilili on the 9th August, 2018 by Hon. D.O. Onyango (SPM) In Civil Suit No. 110 of 2017.

RICHARD ONYINGE.....................................................APPELLANT

VERSUS

DAVID KIRIMOJO......................................................RESPONDENT

JUDGMENT.

This is an Appeal from a ruling delivered in Kimilili SPMCC. 110/2017 where the Senior Principal Magistrate dismissed the appellants application seeking to reinstate his suit which had been dismissed on 22. 2.2018 for non-attendance of the Appellant who was the Plaintiff.  The Appellant in seeking this court to set aside the ruling submits that the trial court erred in dismissing the suit for non attendance that day being the first hearing.  He submits that he was undertaking exams at Masinde Muliro University at time suit was dismissed and that he should be given an opportunity to prosecute his suit.

The Respondent opposes the appeal.  He submitted that this appeal is incompetent as no decree has been extracted, that the Respondent does not know the appellant and therefore there is no cause of action as the same would only accrue to one Mr. Nakitare; who was a tenant of the Respondent and whose property were auctioned for non-payment of rent.  He therefore submits that this appeal is an abuse of the court.

The issue in this appeal is whether the appellant has demonstrate ground for reinstatement of his suit which was dismissed on 22. 2.2018 for non-attendance.  From a perusal of proceedings, it is evident that 22. 2.2018 was the first hearing date; where the Appellant did not attend.  He explains the non-attendance as due to having internal exams at the University.  That appears plausible explanation.  Taking into account that that was a first hearing date, I am satisfied that an order for reinstatement will give the appellant an opportunity to prosecute this case.

I therefore allow the appeal set aside the order or dismissal of sum and direct the suit be reinstated and parties to proceed for hearing.

Each party to bear his own costs.

Dated and Delivered at Bungoma this 27Th day of January, 2021

S.N. RIECHI

JUDGE