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Court of AppealAllowedCivil Application No. 15 of 2013· [2013] KECA 175 (KLR)

Kitts Mbati Mukonyole v Levi Ndombi Mukonyole [2013] KECA 175 (KLR)

Court of Appeal
24 October 2013
1,899 words in judgment
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The bottom line

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Kenya's Court of Appeal restored an appeal dismissed in the parties' absence, ruling the 30-day restoration clock starts when you first learn of the dismissal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Kisumu on a Notice of Motion dated 3rd June 2013 by the applicant, Kitts Mbati Mukonyole, seeking reinstatement of Civil Appeal No. 16 of 2007, which was dismissed on 23rd April 2012 under Rule 102(1) of the Court of Appeal Rules when neither party nor their advocates appeared on the hearing date. The applicant attributed his non-appearance to a breakdown in communication: his advocate's former partnership had dissolved, the hearing notice was served on the defunct firm, and the advocate never learnt of the hearing date, so could not inform his client, who had been actively inquiring about the hearing date. The respondent opposed, arguing laches, inordinate delay and breach of Sections 3A and 3B of the Appellate Jurisdiction Act. The court held that under Rule 102(3), where a party was not served with notice of the hearing, the thirty-day period for restoration runs from first knowledge of the dismissal; the applicant's statement that he learnt of the dismissal on 20th May 2013, though in the grounds rather than an affidavit, was unchallenged, so the application filed on 7th June 2013 was timely. Applying the principles in Shah v Mbogo and Philip Keipto Chemwolo & Mumias Sugar v Kubende, and finding the explanation unrebuted, the court found sufficient cause shown, set aside the dismissal order of 23rd April 2012, restored the appeal to hearing, and made no order as to costs.

Key legal issues

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01

Time for filing a restoration application where the applicant was not served with the hearing notice

Holding

The thirty-day period runs from the date the applicant first heard of the dismissal, not the date of the dismissal order; the application filed 18 days after knowledge was timely.

Reasoning

Rule 102(3) provides that where a party was not served with notice of the hearing, the application for restoration may be made within thirty days of first hearing of the decision. The applicant stated in the grounds that he learnt of the dismissal on 20th May 2013. Though weak evidence, it was unchallenged. Filed on 7th June 2013, the application was within time despite the dismissal having been made a year earlier.

p. 3
02

Sufficient cause for non-appearance on the hearing date

Holding

Failure of an advocate to receive the hearing notice due to the dissolution of his partnership and non-forwarding of correspondence, unchallenged by the respondent, constitutes sufficient cause.

Reasoning

The advocate on record explained that his former partnership had dissipated, the hearing notice was served on the defunct firm, and his erstwhile partner did not forward it, so neither advocate nor client knew the hearing date. The client had shown interest in the appeal. The respondent adduced nothing to rebut these allegations, and the court found the cause demonstrated to its satisfaction.

p. 4

Legal principles established

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  • An application for restoration based on lack of service is computed from the date the applicant first knew of the dismissal, not the date of the dismissal order
  • The standard for setting aside a dismissal for non-appearance is that the discretion is exercised to avoid injustice from accident, inadvertence or excusable mistake, not to assist deliberate obstruction
  • In considering restoration under Rule 102(1), the court exercises unfettered discretionary powers which must be exercised judiciously

Court orders

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  1. 1.The order made on 23rd April, 2012 dismissing Civil Appeal No. 16 of 2007 under Rule 102(1) is set aside
  2. 2.The appeal is restored to hearing
  3. 3.No order as to costs

Authorities

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Legislation

  • Court of Appeal RulesRule 102(1)
  • Court of Appeal RulesRule 102(3)
  • Appellate Jurisdiction ActSection 3A
  • Appellate Jurisdiction ActSection 3B

Cases cited (2)

  • Shah v Mbogo and Another
    (1967) EA 116
  • Philip Keipto Chemwolo and Mumias Sugar Co. Ltd v Augustine Kubende
    (1982) 1 KAR
On appeal from
Court of Appeal
Civil Appeal No. 16 of 2007
Jurisdiction invoked
Proviso to Rule 102(1) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Kitts Mbati Mukonyole v Levi Ndombi Mukonyole [2013] KECA 175 (KLR)", Case Analysis (2013). Civil Application No. 15 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/175/eng@2013-10-24

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