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Court of AppealPartially AllowedCivil Appeal No. 295 of 2009· [2013] KECA 219 (KLR)

Harrison Wanjohi Wambugu v Felista Wairimu Chege & another [2013] KECA 219 (KLR)

Court of Appeal of Kenya
10 October 2013
2,388 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated an appeal dismissed after the appellant missed the hearing, ruling that an honest, promptly corrected mistake should not cost a party their day in court.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri (Visram, Koome & Otieno-Odek, JJ.A) allowed the appellant's appeal against a ruling of the High Court at Nyeri (Makhandia, J.) dated 8th July, 2008, which had declined to reinstate the appellant's appeal that had been dismissed for non-attendance on 5th May, 2008. The underlying dispute arose from a tenancy of three rooms at Plot No. 912 Ziwani Estate Nyahururu and a damages suit in the subordinate court, which was dismissed for lack of evidence; the appellant's subsequent appeal to the High Court was dismissed for non-attendance. The appellant explained his non-attendance as an honest confusion of the hearing date (6th rather than 5th May, 2008) and applied for reinstatement two days later. The High Court found him not candid. The Court of Appeal, applying the Mbogo v Shah test for interfering with discretionary decisions, and Order XLI rules 14 and 16 of the former Civil Procedure Rules, held that the appellant's mistake was excusable, that he acted promptly on learning of the dismissal, and that the right to a hearing is a constitutionally protected right and the cornerstone of the rule of law. Relying on Chemwolo and Belinda Murai, the Court held that an excusable mistake should not cost a party a hearing on the merits, inconvenience being compensable by costs. The Court set aside the ruling of 8th July, 2008, ordered reinstatement of the High Court appeal for hearing on its merits, awarded the respondents costs of the reinstatement application, and directed that costs of this appeal abide the outcome of the High Court appeal.

Key legal issues

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01

Whether the High Court judge misdirected himself in refusing to reinstate an appeal dismissed for non-attendance

Holding

Yes. The appellant's confusion of the hearing date was an excusable mistake; he acted promptly by applying for reinstatement on 7th May, 2008, the day after learning of the dismissal. The judge ought to have reinstated the appeal.

Reasoning

The dismissal for non-attendance fell under Order XLI rule 14 of the former Civil Procedure Rules, with rule 16 providing for re-admission upon proof of sufficient cause. Applying Mbogo v Shah, the Court asked whether the non-attendance was an excusable mistake or deliberate delay. Giving the appellant the benefit of the doubt, and noting his prompt application of 7th May 2008, the Court found the mistake excusable and held the judge's refusal denied the appellant a hearing.

p. 4
02

The primacy of the right to be heard and determination of disputes on the merits

Holding

The right to a hearing is a well-protected constitutional right and the cornerstone of the rule of law; dismissal for non-attendance should be a last resort, and inconvenience can be compensated by costs.

Reasoning

Relying on Richard Nchapi Leiyagu v IEBC, the Court held that even where courts have inherent jurisdiction to dismiss suits, they should do so only in circumstances protecting the integrity of the court process and reflecting proportionality. The respondents' inconvenience from the appellant's non-attendance could be compensated by costs, so refusing reinstatement was disproportionate and denied the parties an opportunity to be heard on the merits.

p. 4

Legal principles established

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  • An appellate court will not interfere with a judge's exercise of discretion unless the judge misdirected himself, misapprehended the law, or failed to consider relevant matters, resulting in a wrong decision or injustice.
  • Where an appeal is dismissed for non-attendance, it shall be re-admitted if the appellant proves he was prevented by sufficient cause from appearing.
  • The discretion to set aside an ex parte dismissal exists to relieve against accident, inadvertence or excusable mistake, not to reward deliberate obstruction.
  • A mistake by a party or advocate should not ordinarily result in the party losing the right to be heard on the merits; an excusable mistake, followed by prompt application, warrants reinstatement, with inconvenience compensated by costs.

Court orders

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  1. 1.Appeal allowed
  2. 2.Ruling of the High Court dated 8th July, 2008 set aside
  3. 3.Substituted with an order allowing the appellant's application for reinstatement of his appeal in the High Court
  4. 4.The appeal in the High Court to be heard on its merits
  5. 5.Costs of the application for reinstatement dated 7th May, 2008 awarded to the respondents
  6. 6.Costs of this appeal to abide by the outcome of the appeal in the High Court

Authorities

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Legislation

  • Civil Procedure Rules (former)Order XLI rule 14
  • Civil Procedure Rules (former)Order XLI rule 16

Cases cited (4)

  • Mbogo & Another -vs- Shah
    (1968) E.A. 93
  • Richard Nchapi Leiyagu -vs- IEBC & 2 others
    Civil Appeal No. 18 of 2013
  • Belinda Murai & others -vs- Amoi Wainaina
    (1978) LLR 2782 (CALL)
  • Philip Chemowolo & another -vs- Augustine Kubede
    (1982-88) KAR 103
On appeal from
High Court of Kenya at Nyeri
H.C.C.A No. 67 of 2006
Jurisdiction invoked
First appellate jurisdiction over an appeal from the High Court (Court of Appeal Act; appeal against exercise of judicial discretion)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (3)

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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, "Harrison Wanjohi Wambugu v Felista Wairimu Chege & another [2013] KECA 219 (KLR)", Case Analysis (2013). Civil Appeal No. 295 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/219/eng@2013-10-10

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