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Court of AppealAllowedCivil Appeal (Application) No. 60 of 1995

PAUL NJOROGE NDUATI vs STEPHEN NDUATI NJOROGE [1998] KECA 189 (KLR)

Court of Appeal of Kenya
16 September 1998
246 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated an appeal dismissed when a sick lawyer missed the hearing, showing courts will restore cases with genuine reasons.

What this practically means

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Executive summary

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This is a short ruling of the Court of Appeal at Nairobi (Kwach, Shah and Owor JJ.A) delivered on 16 September 1998 in Civil Appeal (Application) No. 60 of 1995, an application by Paul Njoroge Nduati for reinstatement of his appeal against Stephen Nduati Njoroge. The appeal, arising from a High Court judgment of Mr. Justice Butler Sloss dated 27 April 1988 in H.C.C.A. No. 75 of 1987, had been dismissed for want of appearance: on 18 December 1996 counsel for the applicant sought an adjournment on the ground that the advocate handling the appeal was ill; the adjournment was refused and counsel was asked to return after half an hour to argue the appeal, but she did not come back, so the appeal was technically dismissed. The respondent, though served, did not appear to oppose the reinstatement application brought under rule 90 of the Court of Appeal Rules. The court found acceptable evidence that both the applicant and his counsel had been indisposed and, in those circumstances, ordered that the appeal be reinstated for hearing. It made no order as to costs. The ruling is a brief discretionary decision on reinstatement; it sets out no extended reasoning, cites no authorities, and its binding significance is limited to the exercise of the rule 90 discretion where indisposition of party and counsel explains a non-appearance.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the appeal, dismissed for want of appearance after counsel failed to return to argue it, should be reinstated under rule 90 of the Court of Appeal Rules

Key legal issues

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01

Reinstatement of an appeal dismissed for want of appearance

Holding

The court reinstated the appeal under rule 90 on the basis of acceptable evidence of indisposition of both the applicant and his counsel.

Reasoning

The appeal had been technically dismissed because counsel, though present and granted an adjournment request which was refused, did not return after half an hour to argue the appeal. The court found acceptable evidence that the applicant was indisposed and so was his counsel, and in those circumstances exercised its discretion under rule 90 to reinstate the appeal for hearing, with no order as to costs.

p. 1

Legal principles established

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  • An appeal dismissed for want of appearance may be reinstated under rule 90 where there is acceptable evidence that the applicant and his counsel were indisposed, and the court may reinstate without costs.

Court orders

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  1. 1.The appeal dismissed for want of appearance is reinstated for hearing
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.A. No. 75 of 1987
Jurisdiction invoked
Rule 90 of the Court of Appeal Rules (inherent application rules of the Court of Appeal)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Technically the appeal was therefore dismissed for want of appearance.
p. 1dismissal for want of appearance
There is acceptable evidence before us that the applicant was indisposed and so was his counsel briefed to appeal.
p. 1evidence supporting reinstatement
In the circumstances we order that this appeal be reinstated for hearing. There will be no order as to costs.
final orders - reinstatement and costs

Issues in the judgment

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minor

The judgment text contains a typographical garbling of a sentence, suggesting a corrupted copy of the original ruling.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "PAUL NJOROGE NDUATI vs STEPHEN NDUATI NJOROGE [1998] KECA 189 (KLR)", Case Analysis (1998). Civil Appeal (Application) No. 60 of 1995. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1998/189/eng@1998-09-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.