JOSEPH MATAFARI SITUMA v NICHOLAS MAKHANU CHERONGO [2000] KECA 390 (KLR)
The bottom line
#If papers reach your lawyer, you're treated as notified — you have 30 days to ask Kenya's Court of Appeal to undo orders made without you.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for non-attendance at an ex parte hearing
A party whose advocate was served with a hearing notice but did not attend court must demonstrate what prevented the advocate from attending; mere ignorance of the hearing does not suffice where service was properly effected on the advocate on record.
The hearing notice was served on June 6, 2000 on Wekhulo & Co. Advocates, who were on record for the applicant, yet neither the advocate nor the applicant attended on June 16, 2000. The court held that the burden lay on the applicant to show sufficient cause for the non-attendance, and found that the applicant had not even attempted to explain what prevented Mr. Wekhulo from attending. Service on the advocate on record was effective service on the party.
Time limit for an application for rehearing under rule 55(4)
The 30-day period for applying for a rehearing runs from the date the applicant first had knowledge of the ex parte proceedings, and an application filed outside that period is out of time and must fail.
The court computed time from June 21, 2000, when Mr. Wekhulo indicated he had instructions in the matter, meaning the applicant had knowledge of the ex parte orders from that date. The rehearing application was not filed until March 20, 2001, far outside the 30-day window prescribed by rule 55(4), and no extension of that time was sought or granted. The application was therefore fatally out of time.
Legal principles established
#- Where an application is heard ex parte after service on a party's advocate on record, the party seeking a rehearing must show that they were prevented from appearing for sufficient cause, and must bring the rehearing application within 30 days of learning of the ex parte orders.
Court orders
#- 1.The applicant's application dated March 16, 2001 seeking a rehearing of the respondent's application of May 2, 2000 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- The superior court
- Jurisdiction invoked
- Rule 55(4) of the Court of Appeal Rules (application for rehearing of an application heard ex parte)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "JOSEPH MATAFARI SITUMA v NICHOLAS MAKHANU CHERONGO [2000] KECA 390 (KLR)", Case Analysis (2001). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/390/eng@2000-06-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.