Mohammed Yakub & Mohammed Yusuf t/a Yasser Butchery v Badur Nasa Saidi Nashean Robert M Chege t/a Covenant Auctioneers [2000] KECA 253 (KLR)
The bottom line
#Kenya's Court of Appeal refused to restore a dismissed appeal because the advocate's vague explanation for missing court wasn't backed by evidence from her clerk.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an appeal dismissed under Rule 99(1) for failure to appear could be restored, that is, whether the advocate on record was prevented by sufficient cause from appearing
- 2.Whether the omission of the advocate on record should be visited upon her clients
Key legal issues
#What constitutes sufficient cause for the restoration of an appeal dismissed under Rule 99(1) for failure to appear
The applicant must show that the advocate on record was prevented by sufficient cause from appearing; a bare affidavit by the advocate asserting that she was engaged elsewhere does not meet the threshold
The court accepted that restoration is available where sufficient cause is shown, but found the advocate's affidavit hollow and unconvincing. It observed that the case would have been different had the advocate's clerk, who on her own deposition failed to instruct her while she was busy elsewhere, sworn a supporting affidavit. Without such corroboration the non-appearance was not sufficiently explained, and the application failed.
Whether the omission of the advocate on record should be visited upon the client
Where no sufficient cause for the advocate's non-appearance is established, the client bears the consequences of the advocate's omission and the appeal remains dismissed
Although litigants are generally not to be penalised for their advocate's faults, the court held that the principle does not assist where the advocate's affidavit fails to establish sufficient cause. On the uncorroborated material before it, the court concluded that this was not a case in which the advocate's omission should be excused, so the client must bear the dismissal of the appeal.
Legal principles established
#- An appeal dismissed under Rule 99(1) for failure to appear may be restored only where the applicant shows that the advocate on record was prevented by sufficient cause from appearing
- A bare or hollow affidavit by the advocate on record does not constitute sufficient cause, and where none is shown the omission of the advocate is visited upon the client
Court orders
#- 1.The application to restore the applicants' appeal is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1945 of 1995
- Jurisdiction invoked
- Appellate jurisdiction of the Court of Appeal; the application arises under Rule 99(1) of the Court of Appeal Rules (dismissal of an appeal for failure to appear and its restoration)
Relief refused
#Restoration of the appellants' appeal dismissed under Rule 99(1) for failure to appear
The affidavit sworn by the advocate on record did not establish sufficient cause for her non-appearance, and it was not supported by an affidavit from her clerk who, on her own deposition, had failed to instruct her
Costs
The application to restore the applicants' appeal is dismissed with costs for the Respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
When an appeal has been dismissed under Rule 99 (1) for failure to appear, the appeal may be restored if in this case, it can be shown that the advocate on record Mrs Rodrigues, was prevented by sufficient cause from appearing.
The rather hollow affidavit sworn to by her in this regard, does not constitute sufficient cause.
It would have been different if there had been another affidavit by her clerk who as deponed in her affidavit, had failed to instruct the advocate leading Mrs Rodrigues who was busy elsewhere, to be in court.
In the result, the application to restore the applicants' appeal is hereby dismissed with costs for the Respondents.
Issues in the judgment
#The cause title lists 'RESPONDENTS' in the plural but the respondents' names run together on a single line without a conjunction, so it is unclear whether there is one respondent or two
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Lomatong v Kosiae & another (Environment and Land Case 107 of 2017) [2026] KEELC 511 (KLR)[2026] KEELC 511 (KLR)4 Feb 2026applied
Cite this brief
#Cite this brief
Caselaw, "Mohammed Yakub & Mohammed Yusuf t/a Yasser Butchery v Badur Nasa Saidi Nashean Robert M Chege t/a Covenant Auctioneers [2000] KECA 253 (KLR)", Case Analysis (2000). Civil Appeal No. 211 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/253/eng@2000-11-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.