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Court of AppealDismissedCivil Application (Nai.) No. 133 of 2011· [2013] KECA 372 (KLR)

Attorney General v Law Society of Kenya & another [2013] KECA 372 (KLR)

Court of Appeal of Kenya
15 March 2013
2,057 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to restore a dismissed case, ruling that traffic jams are not a good enough excuse for a lawyer missing a hearing.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Musinga, JA, sitting as a single judge) delivered at Nairobi on 15th March, 2013 in Civil Application No. 133 of 2011. The applicant, the Attorney General acting through Senior Principal Litigation Counsel Anthony Oteng'o Ombwayo, sought restoration for hearing of an application filed on 5th July, 2011 under rules 4 and 42 of the Court of Appeal Rules, seeking extension of time to appeal against the High Court judgment (Ojwang, J.) in High Court Petition No. 185 of 2005, which had declared certain sections of the Work Injury Benefits Act No. 13 of 2007 inconsistent with the repealed Constitution. That first application was dismissed on 24th October, 2011 with costs after counsel failed to attend, and this second application under rule 56(3) sought its restoration on the ground that a vehicle breakdown, a road accident and traffic jams on Mombasa Road prevented attendance. The Law Society of Kenya opposed, contending the delay of 30 days was unexplained and the explanation for non-attendance insufficient; the 2nd respondent did not oppose. The court held that the explanation fell short of sufficient cause: counsel had Mr. Ngatia's mobile number, knew the hearing time, and could have called, texted, or asked another advocate to hold his brief, but did none of these. The court applied the Leo Sila Mutiso principles on extension of time by way of contrast, noting the narrower discretion under rule 56(3). The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether counsel's failure to attend court due to vehicle breakdown, a road accident and traffic jams constituted sufficient cause under rule 56(3)

Holding

It did not. Counsel could and should have contacted opposing counsel or another advocate to hold his brief, and no explanation was given for the belated call to Mr. Ngatia.

Reasoning

The court found that despite knowing the hearing time and having Mr. Ngatia's mobile number, Mr. Ombwayo never called or texted him between 6.00 a.m. and 9.00 a.m. He contacted only unnamed colleagues in a meeting, though many other advocates were available in the Attorney General's office or outside. A diligent litigant would have sought an adjournment or notification. The explanation left unexplained gaps and did not meet the threshold of sufficient cause.

p. 4
02

Whether the 30-day delay in filing the second application needed explanation

Holding

No - the application was filed within the 30-day period prescribed by rule 56(4), so the delay was immaterial.

Reasoning

Rule 56(4) requires an application under rule 56(3) to be made within thirty days of the decision. The first application was dismissed on 24th October, 2011 and the second filed on 23rd November, 2011, exactly within the stipulated period, so the court found it unnecessary to consider whether the delay was explained.

p. 4
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The meaning of "sufficient cause"

Holding

Sufficient cause is the burden placed on a litigant to show why a request should be granted or an action excused, and must be rational, plausible, logical, convincing, reasonable and truthful.

Reasoning

Relying on Black's Law Dictionary, 9th Edition, the court defined sufficient cause as a burden on the litigant to justify indulgence. The explanation must leave no doubts in the judge's mind and no unexplained gaps in the sequence of events; counsel's account failed that standard.

p. 4

Legal principles established

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  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, and must leave no unexplained gaps in the sequence of events
  • An application to restore a dismissed application under rule 56(3) turns on whether the absent party was prevented by sufficient cause from appearing when the application was called on for hearing
  • The discretion of a single judge on a rule 56(3) application is specifically circumscribed and narrower than the discretion on an extension-of-time application under rule 4

Court orders

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  1. 1.The application dated 23rd November, 2011 seeking restoration of Civil Application No. 133 of 2011 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 4
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 56(3)
  • Court of Appeal Rulesrule 56(4)
  • Work Injury Benefits Act, No. 13 of 2007sections found unconstitutional by the High Court
  • Repealed Constitution of Kenyanot specified

Cases cited (3)

  • Pepco Construction Company Limited vs. Carter & Sons Ltd
    Civil Application No. NAI. 97 of 2000
  • Alfred Romani t/a Romani Architect & 3 Others vs. Association of Members Episcopal Conference in Eastern Africa (AMECEA)
    Civil Application No. NAI. 375 of 2002
  • Leo Sila Mutiso vs. Rose Hellen Wangari Mwangi
    Civil Application No. NAI. 255 of 1997
On appeal from
High Court of Kenya
High Court Petition No. 185 of 2005
Jurisdiction invoked
Rules 4, 42 and 56(3) of the Court of Appeal Rules - application to a single judge to restore a dismissed application for hearing

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, "Attorney General v Law Society of Kenya & another [2013] KECA 372 (KLR)", Case Analysis (2013). Civil Application (Nai.) No. 133 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/372/eng@2013-03-15

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