Francis Drummond Investment Bank v Justus M’Inoti M’Mwambia & another [2020] eKLR Case Summary

Court
High Court of Kenya at Nairobi
Category
Civil
Judge(s)
J. Kamau
Judgment Date
October 26, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3

Case Brief: Francis Drummond Investment Bank v Justus M’Inoti M’Mwambia & another [2020] eKLR


1. Case Information:
- Name of the Case: Francis Drummond Investment Bank v. Justus M’Inoti M’Mwambia & Obadiah Mutai T/A Brond Insurance Agencies
- Case Number: Civil Appeal No. 413 of 2011
- Court: High Court of Kenya at Nairobi
- Date Delivered: 26th October 2020
- Category of Law: Civil
- Judge(s): J. Kamau
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court were whether the Appellant's application to reinstate its appeal, which had been dismissed for want of prosecution, should be granted. Additionally, the court needed to consider the implications of the delay and the conduct of the parties involved.

3. Facts of the Case:
The Appellant, Francis Drummond Investment Bank, had its appeal dismissed on 10th June 2019 due to the absence of its counsel in court. The Appellant's advocate, Peter Masinde, claimed he was engaged in another matter at the Employment and Labour Relations Court and arrived shortly after the dismissal. The 1st Respondent, Justus M’Inoti M’Mwambia, opposed the reinstatement, arguing that the Appellant had failed to prosecute the appeal since 2011, and that the Appellant's counsel should have been present as per the court schedule.

4. Procedural History:
The case began with a stay of execution granted on 16th December 2011, pending appeal. The appeal was admitted for hearing on 9th June 2016. However, several delays occurred due to the Appellant's failure to file necessary documents and serve the Respondents. On 10th June 2019, the appeal was dismissed, prompting the Appellant to file a Notice of Motion to reinstate the appeal, supported by an affidavit from its advocate.

5. Analysis:
- Rules: The court considered the principles of justice and fairness, particularly the right to a fair trial under Article 50(1) of the Constitution of Kenya, 2010, and the need to avoid undue delays in justice as per Article 159(2)(b).
- Case Law: The court referenced several cases, including *Kasturi Ltd v. Nyeri Wholesalers Ltd* [2014] eKLR, which emphasizes the importance of allowing parties to be heard on merit despite inadvertent mistakes by their advocates. Other cases cited included *Philip Chemwolo & Another v. Augustine Kubende* [1986] eKLR and *Shah v. Mbogo & Another* [1967] EA 116, which highlight that courts should exercise discretion to avoid injustice resulting from mistakes.
- Application: The court found that while the Appellant's counsel contributed to the delay, it was not solely responsible for the lengthy timeline of the case. The court acknowledged the advocate's blunder but emphasized that penalizing the Appellant would deny them a fair hearing. The court ultimately ruled that the appeal should be reinstated, provided the Appellant compensated the 1st Respondent for wasted time.

6. Conclusion:
The court granted the Appellant's application to reinstate the appeal, setting aside the dismissal order of 10th June 2019, contingent upon the Appellant paying throwaway costs of Kshs 50,000 to the 1st Respondent. The decision underscored the principle that justice should not be denied due to procedural mistakes, while also ensuring that the Respondent's rights were considered.

7. Dissent:
There were no dissenting opinions noted in the ruling.

8. Summary:
The High Court of Kenya reinstated the appeal of Francis Drummond Investment Bank after it was dismissed for want of prosecution. The ruling highlighted the importance of allowing cases to be heard on their merits, even when procedural errors occur, while also ensuring that the opposing party is compensated for delays. The decision has implications for future cases regarding the treatment of procedural mistakes and the balance between the right to a fair trial and the need for timely justice.

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