Feisal Yassin v Naresh Rathod & another [2020] eKLR Case Summary

Court
High Court of Kenya at Mombasa
Category
Civil
Judge(s)
P.J.O. Otieno
Judgment Date
October 21, 2020
Country
Kenya
Document Type
PDF
Number of Pages
3


Case Brief: Feisal Yassin v Naresh Rathod & another [2020] eKLR


1. Case Information:
- Name of the Case: Feisal Yassin v. Naresh Rathod & Fastrak Logistics Limited
- Case Number: Civil Appeal No. 166 of 2012
- Court: High Court of Kenya at Mombasa
- Date Delivered: October 21, 2020
- Category of Law: Civil
- Judge(s): P.J.O. Otieno
- Country: Kenya

2. Questions Presented:
The central legal issues presented to the court included whether the appellant's failure to file a record of appeal within the stipulated time should result in the dismissal of the appeal, and whether the court should exercise its discretion to set aside the dismissal order and reinstate the appeal based on the appellant's reasons for the delay.

3. Facts of the Case:
The appellant, Feisal Yassin, sought to appeal a judgment from the Chief Magistrate’s Court, which had been delivered on September 12, 2012. The appeal was initially dismissed on March 21, 2017, due to the appellant's failure to file a record of appeal as ordered by the court. The appellant attributed this failure to the illegibility of the handwritten proceedings, which hindered obtaining a typed and certified record. After an unsuccessful application to extend the time to file the record in 2018, the appellant filed a new application in April 2019 to have the dismissal order set aside and the appeal reinstated.

4. Procedural History:
The case progressed through the following stages:
- On February 21, 2017, the court granted the appellant leave to file the record of appeal within 30 days, failing which the appeal would be dismissed.
- The appeal was dismissed on March 21, 2017, due to non-compliance.
- An application to extend the time for filing the record was filed on February 6, 2018, but was dismissed on April 5, 2019.
- On April 9, 2019, the appellant filed a motion seeking to set aside the dismissal order and reinstate the appeal.

5. Analysis:
- Rules: The court considered the rules governing appeals and the discretion to set aside orders made due to default. The relevant statutes include provisions allowing courts to reinstate appeals and the principles guiding the exercise of judicial discretion.

- Case Law: The court referenced several precedents, including:
- *Bank of Africa Kenya Ltd v. Port Sarajero* [2018] eKLR, which emphasizes the need to pardon excusable mistakes.
- *Belinda Mural v. Amos Wainanina* [1978] KLR, which supports the right to be heard on the merits.
- *Philip Chemwolo v. Augustine Kubende* [1982-1988] eKLR 103, which underscores the importance of not denying litigants their day in court due to counsel's mistakes.
- *Cleophas Wasike v. Mucha Swala* CACA No. 2 of 1982 and *Onesmus Mutua Leva v. Kenya Power & Lighting Company Ltd* CACA No. 102 of 1997, which were cited by the respondent to argue against reinstating the appeal.

- Application: The court found that the appellant provided a plausible reason for the delay in filing the record of appeal, particularly the illegibility of the handwritten proceedings. The absence of a rebuttal from the respondent supported this claim. The court exercised its discretion to set aside the dismissal order, reinstating the appeal on the condition that the record be filed within 30 days.

6. Conclusion:
The court ruled in favor of the appellant, reinstating the appeal while imposing a condition to file the record of appeal within 30 days. The court emphasized the importance of allowing disputes to be heard on their merits rather than dismissing them on procedural grounds. The decision reinforces the principle that litigants should not be penalized for their counsel's mistakes.

7. Dissent:
There were no dissenting opinions noted in the ruling. The judge's decision was unanimous in favor of reinstating the appeal.

8. Summary:
The High Court of Kenya at Mombasa reinstated Feisal Yassin's appeal against Naresh Rathod and Fastrak Logistics Limited after determining that the dismissal due to failure to file a record of appeal was unjustified. The court's ruling highlighted the importance of ensuring that litigants have their cases heard on the merits, reinforcing judicial discretion in favor of justice over procedural technicalities. The court awarded costs of the application to the respondent, recognizing the default of the appellant while allowing the appeal to proceed.

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