Josphat Kamau Gatimu v Peter Gatimu Kanyonyo
The bottom line
#Kenya's Court of Appeal reinstated a land appeal dismissed after a lawyer missed the hearing, ruling the mistake was excusable and justice required a full hearing.
What this practically means
#Executive summary
#Key legal issues
#Whether counsel's non-attendance attributable to unpaid fees was an excusable mistake justifying reinstatement
Yes; the appellant was present in court and could not argue the appeal himself because he had counsel on record, so the explanation was plausible and the mistake excusable
The court applied Shah v Mbogo: the discretion exists to relieve against inadvertence and excusable mistake, not deliberate obstruction. Here the appellant attended but, being represented, could not urge the appeal; counsel stayed away over unpaid fees. That was a plausible explanation, and the respondent could be compensated by costs.
Whether the overriding objective under Article 159(2) and Sections 3A and 3B of the Appellate Jurisdiction Act favoured reinstatement
Yes; the overriding objective required the Court to attain justice and fairness, and land disputes in particular warrant a substantive hearing on the merits
The Court held that in exercising its powers under the Act and its rules it must give effect to the overriding objective: justice, fairness, reduced cost and delay, proportionality and equality of parties. Because the appeal concerned a land dispute, it was imperative the parties ventilate their issues substantively.
Whether the respondent's subdivision and disposal of the subject land rendered the application moot or prejudicial
The Court did not accept this as a bar; it held any inconvenience to the respondent was compensable by costs
The respondent deposed that he had subdivided and disposed of Land Parcel No. Mutira/Kiaga/76, the subject matter of the appeal, and urged dismissal as an afterthought. The Court nonetheless found the prejudice, in terms of costs incurred in defending the application, could be compensated by an award of costs, which it granted.
Legal principles established
#- The Court's discretion to set aside ex parte orders exists to relieve against accident, inadvertence or excusable mistake, not to assist deliberate obstruction or delay
- In exercising appellate powers the Court must give effect to the overriding objective of achieving just, expeditious, proportionate and affordable resolution of appeals
Court orders
#- 1.The Notice of Motion dated 21st July 2014 is allowed
- 2.The orders made on 2nd July 2014 dismissing the appeal for non-attendance are set aside
- 3.The appeal is reinstated for hearing
- 4.The respondent shall have the costs of this application
- On appeal from
- High Court of Kenya at Kerugoya
- J.R. Appl. No. 24 of 2013
- Jurisdiction invoked
- Inherent/appellate jurisdiction under Sections 3A and 3B of the Appellate Jurisdiction Act to review the court's own order dismissing the appeal for non-attendance
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josphat Kamau Gatimu v Peter Gatimu Kanyonyo", Case Analysis (2015). Civil Appeal No. 16 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/1004/eng@2015-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.