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Court of AppealAllowedCivil Application No. SUP. 2 of 2017· [2018] KECA 693 (KLR)

Simon Nyamu Migwi v Peter Munene Migwi & another [2018] KECA 693 (KLR)

Court of Appeal of Kenya
21 February 2018
1,390 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated a dismissed case, confirming that an honest, reasonable explanation for missing a hearing can save your application.

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 (Musinga, Sichale & Kantai, JJ.A.) on the applicant's motion to set aside an order dismissing, for want of prosecution, his application for leave to appeal to the Supreme Court against part of the Court of Appeal's judgment in Civil Appeal No. 19 of 2016 delivered on 19th July 2017. The original application, listed for hearing on 19th September 2017, was dismissed when neither the applicant nor his counsel appeared at 9.00 a.m. Counsel for the applicant, Miss Claire Kioko, deponed that she left Nairobi at 5.30 a.m., encountered travel inconveniences, arrived at court on time, but was delayed looking for a robing room and found the matter had already been dismissed when she entered at 9.05 a.m. The respondents opposed through 'Grounds of Objection' (a document unknown to the Court's Rules) and a replying affidavit, contending that no proper reasons for non-attendance were advanced. The Court found the Coram Sheet confirmed the court started at 9.00 a.m., held that the explanation was plausible and reasonable and not seriously challenged, and reiterated that a party or advocate seeking reinstatement bears the responsibility to give a reasonable explanation for non-attendance. The Court exercised its discretion in the applicant's favour, set aside the dismissal, reinstated the motion dated 2nd August 2017 for hearing on the merits, and awarded the respondents costs. The application for leave to appeal itself remains to be heard; nothing in this ruling disturbs the underlying judgment in Civil Appeal No. 19 of 2016.

Key legal issues

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Whether counsel's lateness due to travel difficulties and inability to find a robing room constituted a reasonable explanation warranting reinstatement of a dismissed application

Holding

Yes. The court found the explanation plausible and reasonable and exercised its discretion in favour of the applicant, reinstating the dismissed motion.

Reasoning

The court reviewed the Coram Sheet confirming the court began sitting at 9.00 a.m., and accepted that counsel left Nairobi at 5.30 a.m., encountered travel inconveniences, and arrived at court on time but could not find a room to robe before the matter was called. The respondents did not seriously challenge these facts. Since a party seeking reinstatement bears responsibility for explaining non-attendance, and the explanation here was reasonable, the discretion to set aside the dismissal was properly exercisable in the applicant's favour.

p. 3

Legal principles established

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  • Where an application is dismissed for want of prosecution, the party or advocate must give a reasonable explanation for failure to attend court, which the court must examine before reinstating the application.

Court orders

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  1. 1.The orders dismissing the application for want of prosecution made on the material day are set aside
  2. 2.The motion dated 2nd August 2017 filed in court on 3rd August 2017 is reinstated and shall be set down for hearing by the Court Registry with appropriate service of hearing notices to counsel for the parties
  3. 3.The respondents are awarded costs of the application
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 19 of 2016
Jurisdiction invoked
Rules of the Court of Appeal governing applications for leave to appeal to the Supreme Court and for reinstatement of dismissed applications

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Nyamu Migwi v Peter Munene Migwi & another [2018] KECA 693 (KLR)", Case Analysis (2018). Civil Application No. SUP. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2018/693/eng@2018-02-21

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