Kenya Marine Contractor Epz Limited v Kenya Engineering Workers Union (Civil Application 28 of 2015) [2017] KECA 660 (KLR)
The bottom line
#Kenya's Court of Appeal refused to reinstate a dismissed case, ruling that a vague 'my car broke down' excuse without evidence is not enough.
What this practically means
#Executive summary
#Key legal issues
#Sufficient cause for non-attendance under Rule 55(3)
Mechanical breakdown of counsel's vehicle could amount to sufficient cause, but the applicant offered only a bare assertion without particulars of time, place and mode of transport, so it failed to demonstrate sufficient cause.
Rule 55(1) permits dismissal for non-attendance, but Rule 55(3) allows reinstatement where the applicant was prevented by sufficient cause. Drawing on Kasturi Limited and Kitts Mbati Mukonyole, the court applied the Shah v Mbogo principles. The court held that breakdown of a vehicle is not readily foreseeable, but counsel must mitigate and provide evidentiary support. The applicant's failure to detail departure time, mode of transport, location of breakdown and alternative arrangements left the court unable to sympathise.
Effect of a litigant's conduct on entitlement to discretionary relief
Even if the breakdown explanation were accepted, the applicant's history of non-compliance and delay outweighed any benefit of doubt and disentitled it from the court's indulgence.
The applicant had failed to deposit Kshs.10,000,000 security as directed by the Employment and Labour Relations Court, had to be compelled by consent order to file its appeal, and had its appeal dismissed. Five months later it sought leave to appeal to the Supreme Court out of time. The respondent characterised the applicant as an indolent litigant using delay tactics, and the applicant did not rebut those averments. The court concluded there was no good faith in the applicant's conduct.
Legal principles established
#- An application dismissed for non-attendance may only be reinstated if the applicant demonstrates sufficient cause preventing appearance, supported by credible evidence; a bare, unparticularised claim of vehicle breakdown does not suffice.
- A litigant whose conduct throughout the proceedings has been to obstruct and delay justice cannot benefit from the court's inherent jurisdiction to reinstate dismissed applications.
Court orders
#- 1.Dismissal of the application dated 19th July 2016 seeking review of the order of 11th July 2016
- 2.Costs of the application awarded to the respondent
- On appeal from
- Court of Appeal
- Civil Appeal No. 28 of 2015
- Jurisdiction invoked
- Rule 55(3) of the Court of Appeal Rules (inherent jurisdiction to reinstate an application dismissed for non-attendance)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (2)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- FRANCIS DRUMMOND INVESTMENT BANK v OBADIAH MUTAI T/A BROND INSURANCE AGENCIES[2020] KEHC 2255 (KLR)26 Oct 2020
- Mohammed Salim Ali Mohamed Juma & another v Commissioner of Lands & 2 others [2017] KEELC 250 (KLR)[2017] KEELC 250 (KLR)10 Oct 2017
Cite this brief
#Cite this brief
Caselaw, "Kenya Marine Contractor Epz Limited v Kenya Engineering Workers Union (Civil Application 28 of 2015) [2017] KECA 660 (KLR)", Case Analysis (2017). Civil Application No. 28 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/660/eng@2017-03-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.