Kitts Mbati Mukonyole v Levi Ndombi Mukonyole [2013] KECA 175 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Time for filing a restoration application where the applicant was not served with the hearing notice
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.
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.
Sufficient cause for non-appearance on the hearing date
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.
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.
Legal principles established
#- 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
#- 1.The order made on 23rd April, 2012 dismissing Civil Appeal No. 16 of 2007 under Rule 102(1) is set aside
- 2.The appeal is restored to hearing
- 3.No order as to costs
- 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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
Cite this brief
#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.