Automated Summary
Key Facts
The Appellants' appeal (Nakuru HCCA No. 166 of 2019) was dismissed on 2023-01-26 for failure to file the Record of Appeal. On 2023-03-20, they applied for reinstatement, citing inadvertent delay and compliance with stay conditions (Kshs. 990,000 paid to Respondent's Advocates and Kshs. 1,500,000 deposited in Court). The Court found no novel grounds for reinstatement and dismissed the application on 2024-03-26, ruling it an abuse of process and res judicata under Section 7 of the Civil Procedure Act.
Deceased Name
Robert Pondi Odeko
Issues
- Whether the appeal can be reinstated after being dismissed for want of prosecution due to the Appellants' failure to file the Record of Appeal, considering the delay and whether justice can still be done.
- Whether the Appellants' application is barred by res judicata under Section 7 of the Civil Procedure Act, as it raises the same grounds previously considered and dismissed by the court.
- Whether the Appellants' constitutional rights under Articles 48 and 159 of the Constitution of Kenya (2010) necessitate reinstating the appeal despite procedural defaults.
- Whether the Appellants complied with procedural requirements under Orders 42 and 45 of the Civil Procedure Act to justify reinstating the appeal.
Holdings
The court dismissed the Appellants' application to reinstate their appeal, finding it without merit. The court noted that the Appellants had previously failed to prosecute the appeal and provide a satisfactory reason for the delay. The application was deemed an abuse of the court process, res judicata under Section 7 of the Civil Procedure Act, and the Appellants' repeated use of the same grounds as before the initial dismissal. The court emphasized that the Appellants had not presented anything novel to warrant reinstatement and that the application was made without complying with procedural requirements under Orders 42 and 45.
Remedies
The Application dated 20th March 2023 seeking reinstatement of the appeal is dismissed. The Court found the application without merit and accordingly dismissed it, maintaining the prior dismissal of the appeal for want of prosecution.
Legal Principles
The court applied the principle of res judicata under Section 7 of the Civil Procedure Act, holding that the Applicants' application was an abuse of process as it sought to re-litigate issues already finally determined by the court in a prior decision. The Respondent argued the application was res judicata because the same grounds were previously considered and dismissed.
Precedent Name
- Njai Stephen v Christine Khatiala Andika
- Allan Otieno Osula vs. Gurdev Engineering & Construction Ltd
- Jurgen Paul Flach Vs Jans. Akoth Flach
- Kirinyaga General Machinery vs. Hezekiel Mureithi Ireri
- Elem Investment Limited John Mokora Otwoma
- Ivita Vs Kyumbu
- Henderson Vs Henderson
- Abdurrahman Abdi v Safi Petroleum Products Ltd & 6 others
Executor Name
Bernetta Ayieka Naaman & Everlyne Okweya Omindo
Cited Statute
- Civil Procedure Act
- Civil Procedure Rules 2010
Executor Appointment
Suing as legal representatives of the Estate of the Late Robert Pondi Odeko
Judge Name
- S. Mohochi, J
- Hon D. K. Magare J
Passage Text
- 23. That, the Applicants have brought another Application seeking to be allowed to prosecute their appeal which application was already with. Since the Applicants were aggrieved by the said decision they were supposed to appeal against it but not to bring it back to the Court that had already made its decision therefore being functus officio.
- 34. This Court finds the Application dated 20th March 2023 to be without merit and the same is accordingly dismissed.
- 33. Nothing novel has been presented warranting the Court exercising its discretion to allow the application, set aside the orders of dismissal and reinstate the Appeal.