Johnstone Aggrey Ochola v National Bank of Kenya Limited
The bottom line
#Kenya's Court of Appeal confirmed that a lawyer physically in court but without instructions has not 'attended', so a suit dismissed that day can be revived.
What this practically means
#Executive summary
#Key legal issues
#Scope of order IXB rule 4(1) versus order XVI rule 4
Order IXB rule 4(1) applies only to a suit coming for hearing on first instance; once a hearing has commenced, orders XVI and XVII govern. Order XVI rule 4 requires a prior grant of time and was inapplicable here.
The court read o XVI rule 4 together with rule 1 of the same order. Rule 4 presupposes a party who has failed, on a second or subsequent occasion, to produce evidence after time was granted. Here no adjournment to obtain evidence had been granted to either party, so the governing phrase 'where any party to a suit to whom time has been granted' was not satisfied and the dismissal could not have been made under that rule.
Meaning of 'attendance' where counsel is present but without instructions
Attendance is not mere physical presence; counsel must be ready and duly instructed to progress the case. The Bank's counsel, unable to proceed for lack of instructions, meant the Bank had not attended.
Relying on In Re Mahon, Sarkar on Civil Procedure, Finaughty v Prinsloo and this Court's own decision in Juliane Ulrike Stamon, the court held appearance in law means being ready to do something for the suit's progress. Counsel here could do nothing without her client, so the Bank did not attend in law, distinguishing Herman Mugachia where counsel's own default caused the absence.
Availability of o IXB rule 8 relief and delay
The Bank was entitled to move under o IXB rule 8 to set aside the dismissal; its delay, though unexplained, caused no prejudice beyond monetary compensation, which the trial judge addressed by awarding thrown-away costs.
The court held the setting-aside power extends beyond orders made under o IXB rule 4(1) to part-heard suits where a party fails to attend a resumed hearing. On delay, the court accepted it was not fully explained but found it compensable in costs, and noted the trial judge had in fact ordered thrown-away costs, evidencing his appreciation of that point.
Legal principles established
#- Where a hearing has commenced, a party in whose absence an adverse order is made may move under o IXB rule 8 to set aside, vary or review the order; the setting-aside power is not confined to orders made under o IXB rule 4(1).
- Order XVI rule 4 applies only where a party has already been granted time to produce evidence and fails after such grant; it does not govern a first-instance dismissal on the day fixed for hearing.
- 'Attendance' or 'appearance' under the Civil Procedure Rules denotes counsel's presence in court ready and duly instructed to do something in relation to the progress of the case, not mere physical presence.
- Where counsel cannot proceed for lack of instructions from the client, not through counsel's own default, the client cannot be deemed to have appeared, and dismissal of the suit is a dismissal in the client's absence which may be set aside under o IXB rule 8.
Court orders
#- 1.Appeal dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No.628 of 1995
- Jurisdiction invoked
- First appellate jurisdiction over appeals from the High Court under the Civil Procedure Act and Appellate Jurisdiction Act (provisions not expressly cited in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Chemichemi na Safaricom Plaintiffs v Defendant (Preliminary Objection on Recognised Agent under Special Power of Attorney)[2012] KEHC 5508 (KLR)27 Sept 2012
- J.S.K. (Cargo) Limited v Kenya Airways Limited [2008] KECA 52 (KLR)[2008] KECA 52 (KLR)21 Nov 2008followed
Cite this brief
#Cite this brief
Caselaw, "Johnstone Aggrey Ochola v National Bank of Kenya Limited", Case Analysis (2000). Civil Appeal 139 of 1999. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/430/eng@2000-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.