Halake Sadia Mohamd VS Dan Galma Jattani

INTRODUCTION

1. The Appeal seeks to overturn the Orders of 31st August 2022 in which the Court declined to reinstate the Appellant’s suit, the same having been dismissed for want of prosecution on 5th April, 2022.

2. The Appellant’s Application seeking to reinstate the Suit was dated 20th July 2022 and sought to vacate orders issued on 4th July 2022.

3. On 31st August 2022 when the Application came up for hearing the Court pronounced itself as follows-

Court: Chamber Summons dated 20th July 2022 prays for the suit to be reinstated. The instructions from the head of station are that parties must file a new suit if their suit is dismissed for want of prosecution. Accordingly, the Chamber Summons dated 20th July 2022 is dismissed and the Plaintiff is advised to file a fresh suit.

4. It is against this decision that the Appellant has lodged the 11 ground Memorandum of Appeal which contends that the decision was not in the minors’ best interests and the Magistrate failed to consider the Application on its merits.

5. The Summary refusal to reinstate it is submitted, flies in the face of the Constitutional safeguards regarding right to a hearing and access to justice. In arriving at my decision herein I note that indeed the record shows that the Court did not consider the Application on its merits but instead referred to a directive by the Head of the Station.

6. It is not possible for an administrative directive to override clear constitutional and legislative provisions.

7. In this instance I am persuaded by the decision John Nahashon Mwangi V Kenya Finance Bank Limited (in Liquidation) 2015 eKLR and find the matter being one that touched on the Welfare and interest of minors, the Court was obligated to consider the Application on its merits.

8. I have considered the Application and observe that the Applicant did raise multiple grounds that required consideration by the Court. Accordingly, I allow the Appeal and direct that the Suit Children’s Case No. 13 of 2017 be reinstated and be set down for hearing on a priority basis.

9. Having regard to the nature of the matter and the parties involved, each party will bear their own costs.

Orders accordingly.