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Court of AppealAllowedCivil Appeal (Application) No. 167 of 2009· [2014] KECA 434 (KLR)

Henry Njagi Muruariua v A.O Okello, District Commissioner Mbeere District & another [2014] KECA 434 (KLR)

Court of Appeal of Kenya
22 July 2014
AVAlnashir VisramMartha Karambu KoomeMartha KoomeJOJ. Otieno-Odek
949 words in judgment
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The bottom line

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The Court of Appeal restored an appeal dismissed when the lawyer missed the hearing date, because the explanation was credible and the request came within 30 days.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Visram, Koome and Odek, JJ.A) on an application under Rule 102(1) of the Court of Appeal Rules to set aside the Court's orders of 10th March, 2014 dismissing the appeal for non-attendance, and to restore the appeal for hearing. The appeal lay from a ruling of the High Court at Embu (Karanja, J.) dated 3rd June, 2009 in H.C Misc. Applic. No. 18 of 2008 (JR). The applicant's advocate, Mr. Daniel Kamunda, deposed that he was not served with the hearing notice, learnt of the hearing date only on the material morning from the applicant who was present in court, and was unable to travel from Nairobi to Nyeri in time; he instructed Nyeri counsel to hold his brief and seek an adjournment, which the Court declined. The 2nd respondent's counsel opposed, contending the advocate was aware of the date. The Court restated that reinstatement under Rule 102(1) is discretionary and the burden lies on the applicant to show sufficient cause, adopting the formulation that sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps. Finding the explanation plausible and the application filed within 30 days as required by Rule 102(3), the Court allowed the application, restored the appeal to be heard on merit, and ordered the applicant to bear the costs of the application.

Key legal issues

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01

Whether the applicant showed sufficient cause for his advocate's non-attendance on the hearing date

Holding

The Court found the advocate's explanation - that he was not served with the hearing notice and only learnt of the date on the material morning - plausible, and gave the applicant the benefit of doubt.

Reasoning

Rule 102(1) permits restoration where the appellant shows he was prevented by sufficient cause from appearing. The applicant's advocate deposed that he was never served with the hearing notice, learnt of it only on the morning of the hearing, and promptly instructed Nyeri counsel to hold his brief and seek an adjournment. The Court found this explanation plausible and free of unexplained gaps, satisfying the sufficiency threshold drawn from the Attorney General v Law Society of Kenya formulation.

p. 2
02

Whether the restoration application was filed within the time required by Rule 102(3)

Holding

The application filed on 19th March, 2014, within 30 days of the 10th March, 2014 dismissal, complied with Rule 102(3).

Reasoning

Rule 102(3) requires a restoration application to be made within thirty days of dismissal. The appeal was dismissed on 10th March, 2014 and the application was lodged on 19th March, 2014, well within the window. The Court expressly recorded this compliance as an independent ground for allowing the application, alongside the plausibility of the explanation for non-attendance.

p. 2

Legal principles established

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  • The power to reinstate an appeal dismissed for non-attendance under Rule 102(1) is discretionary and the onus is on the applicant to show he was prevented by sufficient cause from appearing when the appeal was called on for hearing.
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps in the sequence of events.
  • The Court's discretion to set aside an ex-parte judgment or order is intended to avoid injustice or hardship resulting from accident, inadvertence or excusable mistake or error.

Court orders

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  1. 1.The applicant's application is allowed
  2. 2.The appeal is restored to be heard on merit
  3. 3.Costs of the application shall be borne by the applicant

Authorities

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Legislation

  • Court of Appeal RulesRule 102(1)
  • Court of Appeal RulesRule 102(3)

Cases cited (3)

  • K&K Kamman Limited vs Mount Kenya Game Ranch Limited & 3 others
    Civil Appeal (Application) No. 120 of 2003
  • The Hon. Attorney General vs The Law Society of Kenya & Another
    Civil Appeal (Application) No. 133 of 2011
  • Richard Nchapi Leiyagu vs IEBC & 2 others
    Civil Appeal No. 18 of 2013
On appeal from
High Court of Kenya at Embu
H.C Misc. Applic. No. 18 of 2008 (JR)
Jurisdiction invoked
Rule 102(1) and 102(3) of the Court of Appeal Rules (application to restore an appeal dismissed for non-attendance)

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, "Henry Njagi Muruariua v A.O Okello, District Commissioner Mbeere District & another [2014] KECA 434 (KLR)", Case Analysis (2014). Civil Appeal (Application) No. 167 of 2009. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2014/434/eng@2014-07-22

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