Arthur Mathitu Nderitu & another (suing as personal representative of the Estate of Stanley Nderitu Ngari (Deceased) v Settlement Funds Trustees & 2 others [2019] KECA 80 (KLR)

The motion had premised itself on Rule 71(4), which governs criminal appeals, when the applicable provision was Rule 102(1) governing dismissal for non-attendance in civil appeals. Because the substance of the motion unmistakably sought restoration of a civil appeal, the court invoked the overriding objective in Article 159(2)(d) of the Constitution and Sections 3A and 3B of the Appellate Jurisdiction Act to cure the mis-citation rather than strike out the application on a purely technical footing.

The 2nd respondent argued the applicants had been evicted, found in contempt and fined Ksh. 100,000, and so should be denied audience. The court held there was insufficient material before it to deal with the contempt question, adopted the Rose Detho position that hearing a contemnor is discretionary, and held the respondents could raise contempt before the court seized of the restored appeal. The circumstances commended exercise of discretion in the applicants' favour.

The proviso to Rule 102(1) and Rule 102(3) required the applicant to show sufficient cause for non-appearance. The applicants deposed they never knew of the hearing date, and there was no evidence of the mode, date or recipient of service on their former advocates. The bench that dismissed the appeal had asserted service, but the record contained no copies of the notices. With both sides absent, land ownership being emotive and lives having been lost in such disputes, the court gave the appellant the benefit of doubt.

The rule permits an application within 30 days of the date the applicant discovered the appeal had been dismissed. The applicants deposed they learned of the dismissal on 7th June 2019 upon instructing new advocates and moved with dispatch ten days later. There was no contestation of the discovery date by the respondents, so the application was within time.

The supporting affidavit bore the name of the deceased original plaintiff. The court agreed a dead person cannot swear an affidavit but accepted the applicant's explanation that the deceased's name was inserted by mistake by his advocate, who had failed to verify the deponent's identity. Given the applicant's age and illiteracy, the court declined to punish the litigant for counsel's shortcomings and held the supplementary sworn and filed affidavit cured the defect.