Attorney General & another v Phylis Wangari Maina & another [2001] KECA 162 (KLR)
The bottom line
#Kenya's Court of Appeal refused to restore a dismissed appeal application, ruling that a lawyer's careless diary mistake and general delay do not justify missing a hearing.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.What constitutes 'sufficient cause' under rule 55(3) of the Court of Appeal Rules for restoring an application dismissed for non-appearance under rule 55(1)?
- 2.Whether a mistake of counsel can amount to sufficient cause for the purposes of rule 55(3).
- 3.Whether counsel's failure to attend the hearing on 25th September 2001, attributed to a diary entry recording only the case number, was a reasonable explanation amounting to sufficient cause.
- 4.Whether the applicants' delay in filing the restoration application and their conduct throughout the litigation disentitled them to the indulgence of the court.
Key legal issues
#What constitutes 'sufficient cause' under rule 55(3) of the Court of Appeal Rules?
The discretion under rule 55(3) is fettered: restoration requires a showing that the absent party was prevented by sufficient cause from appearing. A mistake of counsel may qualify, but confusion and slothfulness cannot.
The judge contrasted rule 4, whose discretion is wholly unfettered, with rule 55(3), which is fettered by the sufficient-cause requirement. Tracing rule 9 of the old Court of Appeal for Eastern Africa Rules through Ngoni-Matengo, Nas Airport Services, Harnam Singh and Belinda Murai, he held that a registry mistake, deprivation of an accrued right through no fault of the applicant, or a counsel's mistake may suffice, but pure delay, lack of diligence, and the non-opposition of the other side do not; confusion and slothfulness never can.
Whether counsel's diary mistake amounted to sufficient cause for her non-appearance on 25th September 2001.
No. The explanation - entering only the application number and assuming the matter was in the High Court - was not reasonable: the correct date had been diarised, the court numbering would have distinguished the forums, and no efforts to check were shown.
Taking a date by consent relieves the other side and the court of any duty to remind counsel. Mrs Madahana had entered the matter against the correct date, did not tell the court what efforts she made to find out where the case was, and learned of the dismissal only two days later. Her further delay of some twenty-eight days in filing the restoration motion, justified by the thirty-day window in rule 55(4), showed the non-appearance was consistent with the applicants' conduct throughout.
Whether the court would have exercised its discretion in the applicants' favour even if it were unfettered.
No. The judge stated that even if no sufficient cause were required and his discretion were as unfettered as under rule 4, he doubted he would have exercised it in the applicants' favour because they did not deserve it.
The applicants' defaults were admitted: they neither served the 2nd and 4th defendants with the notice of appeal nor sought directions within seven days, took some three months to file their rectification motion, had it adjourned once for failure to serve the notice of motion, and then failed to attend a hearing date taken by consent. This course of conduct displayed the confusion and slothfulness which the judge held incapable of constituting sufficient cause.
Legal principles established
#- Restoration under rule 55(3) is not a matter of unfettered discretion: the applicant must show he was prevented by sufficient cause from appearing, unlike the wholly unfettered discretion under rule 4.
- A mistake of counsel, whether on a point of law or fact, can amount to sufficient cause for extension of time.
- Confusion and slothfulness cannot constitute sufficient cause.
- Pure delay, and the fact that the opposite party does not oppose an extension, do not necessarily amount to sufficient reason; depriving a party through no fault of his own of an accrued right does.
- A party who takes out a hearing date by consent cannot expect a reminder: consent dates relieve the other side and the court of the duty to serve hearing notices.
Court orders
#- 1.The motion filed by the applicants on 25th October, 2001 (application under rule 55(3) for restoration of the dismissed motion) shall be and is hereby dismissed with costs to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1301 of 1994
- Jurisdiction invoked
- Rule 55(3) of the Court of Appeal Rules - application to restore for hearing an application dismissed under rule 55(1) for non-appearance, in an intended appeal against the High Court decision in HCCC No. 1301 of 1994
Relief refused
#Restoration for hearing of the applicants' motion dismissed under rule 55(1) for non-appearance
The applicants failed to show sufficient cause; counsel's diary mistake was not a reasonable explanation and the applicants' conduct throughout displayed confusion and slothfulness.
Extension of time within which to file an application to dispense with service of the notice of appeal upon the 2nd and 4th defendants in HCCC No. 1301 of 1994
Refused because the restoration application failed; the admitted defaults of non-service and failure to seek directions within seven days caused the respondents' pending strike-out motion.
Deeming the application duly filed and dispensation of service of the notice of appeal on the 2nd and 4th defendants
Consequential refusal - the restoration application having been dismissed, the underlying prayers in the dismissed motion were not granted.
Costs
The motion filed by the applicants on 25th October, 2001 was dismissed with costs to 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.
That being my view of the matter the order that I make must be that the motion filed by the applicants on 25th October, 2001, shall be and is hereby dismissed with costs to the respondents.
Confusion and slothfulness cannot constitute sufficient cause.
After the ruling in Belinda's case, there can be no doubt that a mistake of counsel, whether on a point of law, or fact, can amount to a sufficient reason to warrant the court extending time and thus "not closing the door of justice" in the face of a litigant.
The purpose for taking dates by consent is that it relieves the other side and the court of the duty to ensure that both sides to the case are served with a hearing notice.
Pure delay, even though some reason or reasons may be given for it, will not necessarily amount to a sufficient reason. Nor will the fact that the opposite party does not oppose the extension sought amount to a sufficient reason.
The difference between rule 4 and rule 55 (3) is that the discretion exercisable by the Court under rule 4 is wholly unfettered while that under rule 55 (3) is fettered in the sense that before the Court can exercise its discretion in favour of an applicant, "sufficient cause" has to be shown.
Issues in the judgment
#Internal chronology contradiction: the applicants' motion is said to have been lodged on 2nd October 2001 ('the applicants lodged their own motion on 2nd October, 2001'), yet the same motion is described as having been adjourned on 25th June 2001 and dismissed on 25th September 2001 - dates preceding its stated filing date.
The judgment states the notice of appeal lodged on 29th October 1999 was 'clearly lodged out of time', yet 29th October 1999 falls within fourteen days of the 18th October 1999 judgment which the court itself identifies as triggering the rule 74(2) period.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Attorney General & another v Phylis Wangari Maina & another [2001] KECA 162 (KLR)", Case Analysis (2001). Civil Appeal (Application) No. 249 of 2000. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/162/eng@2001-12-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.