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Court of AppealAllowedCivil Application No. NAI. 303 of 2009 (UR 209/2009)

Westlands Triangle Properties Limited v Westlands Sundries Limited & 2 others [2010] KECA 404 (KLR)

Court of Appeal of Kenya
12 February 2010
SBS.E.O. BosireEOE.O. O'KubasuJNJ.G. Nyamu
1,199 words in judgment
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The bottom line

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Kenya's Court of Appeal restored a dismissed case because a lawyer's honest absence counted as good reason, and froze the property to keep it intact.

What this practically means

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Executive summary

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This is a single-judgment ruling of the Court of Appeal at Nairobi (Bosire, O'Kubasu and Nyamu, JJ.A) delivered on 12th February 2010 in which Westlands Triangle Properties Limited, the appellant in a intended appeal against the decision of Lady Justice R. N. Sitati of the Environmental and Land Law Division in Civil Case No. 112 of 2008, sought restoration of its rule 5(2)(b) application dated 10th March 2009. That application, seeking stay of execution and proceedings, had been dismissed on 12th October 2009 under rule 55(1) of the Court of Appeal Rules for non-attendance. The applicant's advocate, Mr. Musalia Mwenesi, deponed that on the hearing date he was outside the court precincts remedying a dress flaw, having inadvertently omitted his advocate wings, and that his absence was not intentional. The applicant invoked rule 55(3), which permits a party in whose absence an application was determined to seek restoration upon showing sufficient cause. The respondents did not oppose restoration but opposed the status quo prayer. The court held that the reasons for non-attendance were not frivolous and that sufficient cause had been shown, entitling the applicant to restoration. On the status quo prayer, the court reasoned that allowing restoration without preserving the subject matter would be an exercise in futility, as the subject matter might be interfered with before the application was heard. The court allowed the application, granted prayers 2 and 3 (restoration and maintenance of the status quo obtaining on 12th October 2009), and ordered that costs abide the outcome of the notice of motion. No authorities were cited.

Questions the Court framed

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

  1. 1.Whether the applicant showed sufficient cause for non-attendance when its rule 5(2)(b) application was dismissed under rule 55(1)
  2. 2.Whether the dismissed application of 10th March 2009 should be restored for hearing
  3. 3.Whether the status quo prevailing on 12th October 2009 should be maintained pending hearing of the restored application

Key legal issues

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01

Whether sufficient cause was shown for the applicant's non-attendance when its rule 5(2)(b) application was dismissed

Holding

The court held that the reasons for non-attendance were not frivolous and that sufficient cause had been shown, entitling the applicant to restoration of the dismissed application.

Reasoning

The application for restoration was brought within the time prescribed by the rules. The applicant's advocate explained his absence: he was outside the court precincts attending to a dress flaw having inadvertently omitted his advocate wings, and was not intentionally absent. The court found these reasons genuine rather than frivolous and therefore satisfied the sufficient-cause threshold in rule 55(3).

p. 3
02

Whether the status quo should be preserved pending the rehearing of the restored application

Holding

The court granted the status quo prayer, holding that restoring the application without preserving the subject matter would be futile.

Reasoning

The respondents opposed the status quo prayer. The court reasoned that allowing restoration alone while refusing preservation would defeat the purpose of restoration, because by the time the notice of motion was heard and determined the subject matter might have been interfered with so as to render any further action by the applicant fruitless. Both prayers 2 and 3 were therefore allowed.

p. 3

Legal principles established

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  • Under rule 55(3) of the Court of Appeal Rules, a party in whose absence an application was dismissed under sub-rule (1) may have it restored if he shows he was prevented by sufficient cause from appearing when it was called on for hearing.

Court orders

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  1. 1.The applicant's application under Rule 5(2)(b) dated 10th March 2009, dismissed on 12th October 2009 under Rule 55(1), is restored to hearing for hearing and determination inter partes
  2. 2.Pending the hearing and determination of the application dated 10th March 2009, the parties shall observe the status quo obtaining on 12th October 2009
  3. 3.Costs shall abide the outcome of the notice of motion

The bench

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

SB
majority
EO
majority
JN
majority
On appeal from
High Court of Kenya (Environmental and Land Law Division)
Civil Case No. 112 of 2008
Jurisdiction invoked
Rules 1(2), 5(2)(b), 47(1) & (2) and 55(3) of the Court of Appeal Rules

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.

In view of the foregoing, we are satisfied that sufficient cause has been shown for non-attendance. The applicant is entitled to the order for restoration of the notice of motion.
p. 3Restoration of application dismissed for non-attendance
We therefor allow this application and grant prayers 2 and 3 of the application. Costs shall abide the outcome of the notice of motion.
p. 3Final orders - restoration and status quo

Issues in the judgment

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minor

Typographical error in the signature block - 'JUDGE OF APEPAL' instead of 'JUDGE OF APPEAL' under J.G. Nyamu's name.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Westlands Triangle Properties Limited v Westlands Sundries Limited & 2 others [2010] KECA 404 (KLR)", Case Analysis (2010). Civil Application No. NAI. 303 of 2009 (UR 209/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/404/eng@2010-02-12

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