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Court of AppealPartially AllowedCivil Appeal (Application) No. 2 of 2017

Yego v Cheboi (Civil Appeal (Application) 2 of 2017) [2019] KECA 638 (KLR)

Court of Appeal
6 June 2019
PWP. N. WakiHOHannah OkwenguJMJ. Mohammed
2,270 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated an appeal dismissed when a lawyer mixed up hearing dates, but made the winning side pay the other side's costs.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Eldoret (Waki, Hannah Okwengu and J. Mohammed, JJ.A) determines the applicant's notice of motion dated 6th December, 2018 seeking restoration of Civil Appeal No. 2 of 2017, which had been dismissed on 4th December, 2018 for non-attendance under Rule 102(1) of the Court of Appeal Rules. The applicant explained that counsel had been served with two hearing notices, one for this appeal listed on 4th December, 2018 and another for a different appeal listed on 5th December, 2018, and had inadvertently diarized both for 5th December, resulting in non-attendance. The respondent opposed, contending the application was an afterthought and that litigation must come to an end after seventeen years. The court held that an applicant under Rule 102 must satisfy two conditions: filing within thirty days of dismissal, and showing sufficient cause for non-attendance. The application, lodged a day after dismissal, met the time requirement. On sufficient cause, the court adopted the definition that the explanation must be rational, plausible, logical, convincing, reasonable and truthful, and guided by Belinda Murai and Philip Chemwolo, found counsel's honest, promptly-rectified mistake excusable. The court set aside the dismissal order of 4th December, 2018, allowed the motion, and restored the appeal for hearing, notably awarding costs of the application to the respondent in any event despite the application's success. This decision binds subordinate courts and the High Court on the two-condition test for restoration under Rule 102.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application for restoration was made within the thirty (30) days prescribed by Rule 102(3) of the Court of Appeal Rules
  2. 2.Whether the applicant showed that he was prevented by sufficient cause from attending the hearing of the appeal on 4th December, 2018
  3. 3.Whether the dismissal of the appeal for non-attendance on 4th December, 2018 should be set aside and the appeal restored for hearing

Key legal issues

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01

Compliance with the time requirement for restoration under Rule 102(3)

Holding

The application lodged on 6th December, 2018, a day after the dismissal on 4th December, 2018, was within thirty days and therefore satisfied the first condition.

Reasoning

Rule 102(3) requires that an application for restoration be made within thirty days of the decision of the Court. The appeal was dismissed on 4th December, 2018 and the notice of motion was filed on 6th December, 2018. The court held this was expeditious and within the mandatory period, satisfying the first condition for reinstatement.

p. 2
02

Whether the mis-diarization of the hearing date by counsel amounted to sufficient cause

Holding

The explanation that counsel was served with two hearing notices for consecutive days and inadvertently diarized both appeals for 5th December, 2018 was candid, forthright and excusable, amounting to sufficient cause.

Reasoning

The court accepted counsel's sworn explanation of receiving two hearing notices, one for 4th December 2018 in this appeal and one for 5th December 2018 in another appeal, and of inadvertently diarizing both for 5th December. Although no court cause list was annexed proving the second listing, the application was lodged a day after dismissal. Guided by the dicta in Belinda Murai and Philip Chemwolo, the court held the mistake excusable.

p. 3
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The nature of 'sufficient cause' under the proviso to Rule 102(1)

Holding

'Sufficient cause' is not rigidly defined; it must be rational, plausible, logical, convincing, reasonable and truthful, and receives a liberal construction to advance substantial justice where there is no negligence or want of bona fides.

Reasoning

The court drew on Okiya Omtata Okoiti, adopting Musinga, JA's definition that sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps. It also adopted the Tanzanian Court of Appeal's liberal construction approach and the Indian Supreme Court's holding in Parimal v Veena that sufficient cause excludes negligence or want of bona fides, with discretion exercised judiciously on the facts of each case.

p. 2

Legal principles established

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  • Under Rule 102 of the Court of Appeal Rules, an applicant for reinstatement of an appeal dismissed for non-attendance must satisfy two conditions: the application must be made within thirty days of the dismissal, and the applicant must show he was prevented by sufficient cause from attending the hearing.
  • What constitutes 'sufficient cause' is a question of fact to be determined in the varied and special circumstances of each case, and an honest, excusable mistake by counsel in diarizing a hearing date can amount to sufficient cause.
  • A mistake by counsel, where honestly explained and promptly rectified, ought not to be visited on the client; unless there is fraud or intention to overreach, an error or default can be put right by payment of costs.

Court orders

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  1. 1.The ruling and order dated 4th December, 2018 dismissing the appeal is set aside
  2. 2.The applicant's notice of motion dated 6th December, 2018 is allowed
  3. 3.Civil Appeal No. 2 of 2017 is restored for hearing
  4. 4.Costs of the application are awarded to the respondent in any event

The bench

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One judgment of the whole court — no separate or dissenting opinions.

PW
majority
HO
majority
JM
majority
On appeal from
Court of Appeal
Civil Appeal No. 2 of 2017 (dismissal order of 4th December 2018)
Jurisdiction invoked
Rule 102(1) of the Court of Appeal Rules - proviso permitting restoration of an appeal dismissed for non-attendance where the appellant was prevented by sufficient cause

Relief refused

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Costs of the application in favour of the applicant

Although the application succeeded, the court awarded costs of the application to the respondent in any event

p. 3

Costs

Costs of the application are awarded to the respondent in any event.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The ruling and order dated 4th December, 2018 is set aside. In lieu thereof, we allow the applicant’s notice of motion dated 6th December, 2018 with the consequence that the applicant’s appeal, Civil Appeal No 2 of 2017 is hereby restored for hearing. Costs of the application are awarded to the respondent in any event.
p. 3Final orders - restoration of appeal
Under Rule 102, an applicant must satisfy two (2) conditions before the Court can exercise its discretion in his/her favour; the application for reinstatement should be made within thirty (30) days of the dismissal and the applicant must show that he or she was prevented by sufficient cause from attending the hearing.
p. 2Conditions for reinstatement under Rule 102
It is a question of fact and the court has to exercise its discretion in the varied and special circumstances of each case.
p. 2Sufficient cause as a question of fact
A mistake is a mistake. It is no less a mistake because it is unfortunate slip.
p. 3Excusable mistakes by counsel - Belinda Murai dictum adopted
unless there is fraud or intention to overreach, there is no error or default that cannot be put right by payment of costs
p. 3Broad equity approach to blunders - Philip Chemwolo dictum adopted

Issues in the judgment

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minor

The coram lists Waki, Hannah Okwengu and J. Mohammed, JJ.A, but the applicant's grounds state the appeal was dismissed by 'Githinji, Hannah Okwengu and J. Mohammed, JJ.A' - a discrepancy in the composition of the bench that dismissed the appeal on 4th December 2018.

minor

The judgment quotes a passage headed 'Rule 102 (2) –' but then sets out text labelled 'Rule 102 (3)', leaving the content of sub-rule (2) unstated.

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, "Yego v Cheboi (Civil Appeal (Application) 2 of 2017) [2019] KECA 638 (KLR)", Case Analysis (2019). Civil Appeal (Application) No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/638/eng@2019-06-06

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