Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Appeal (Application) No. 230 of 2015· [2020] KECA 186 (KLR)

BML v WM [2020] KECA 186 (KLR)

Court of Appeal
20 November 2020
2,709 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to restore two dismissed appeals, confirming the 30-day window under Rule 102(1) is mandatory and blaming your advocate won't save you.

What this practically means

#

Executive summary

#
This is a ruling of the Court of Appeal at Nairobi (Asike-Makhandia, J. Mohammed and Kantai, JJ.A) on a notice of motion by Professor BML seeking extension of time and restoration of two appeals - Civil Appeal No. 230 of 2015 and Civil Appeal No. 353 of 2012 - which were dismissed on 3rd July, 2019 under Rule 102(1) of the Court of Appeal Rules for non-attendance, with costs. The appeals arose from the dissolution of the parties' marriage in High Court Divorce Cause No. 179 of 2009. The applicant advanced four reasons for non-attendance: ignorance of the hearing date, her advocates' failure to attend or notify her, her medical treatment in the USA, and the principle that a client should not be punished for counsel's sins. The court identified the sole issue as whether the threshold for the discretionary orders was met. It held that Rule 102(1) imposes two conditions: application within thirty days of dismissal and demonstration of sufficient cause. The application, filed almost six months late, failed the mandatory first test. On sufficient cause, the court doubted the applicant's candour, noting her constant communication with fee-demanding counsel, her failure to comply with earlier directions (late supplementary record, no written submissions), and that the hearing fell in a month she was not hospitalised. Her conduct - including initiating divorce proceedings in the San Mateo County Court in the USA while the appeals were pending - and the inordinate unexplained delay militated against the exercise of discretion. The respondent had also since obtained a decree absolute. The application was dismissed with costs to the respondent.

Key legal issues

#
01

Whether the applicant satisfied the two conditions for restoration under Rule 102(1) of the Court of Appeal Rules

Holding

The application failed both tests: it was filed nearly six months after the dismissal, well outside the mandatory 30-day window, and no sufficient cause for non-attendance was shown.

Reasoning

Rule 102(1) requires the applicant to show she was prevented by sufficient cause from appearing, and Rule 102(2) requires the application within thirty days. The application was lodged about six months late and the proviso is mandatory. On sufficient cause, the court doubted the claim that advocates never informed her of the hearing date, noting she was in constant contact with counsel demanding fees, had failed to comply with prior directions, and was not diligent in prosecuting the appeals.

p. 2
02

Whether the mistake or inaction of the applicant's advocates excused her non-attendance

Holding

No. While mistakes of counsel should generally not be visited on a client, a principal bears the consequences of an agent's non-performance, and the client has a duty to pursue the matter.

Reasoning

The court found the applicant was in constant communication with counsel who persistently demanded fees, making it implausible she was unaware of the hearing date. Relying on Rajesh Rughani and Bains Constructions, it held that simple inaction by an advocate is not an excusable mistake, and that the applicant's own failures - late supplementary record, no written submissions - showed a lack of diligence.

p. 2
03

Whether the applicant's conduct and the six-month delay disentitled her to the discretionary relief

Holding

Yes. The exercise of discretion considers the applicant's conduct before, during and after the order sought to be overturned, and the inordinate, unexplained delay, together with parallel divorce proceedings in the USA, militated against relief.

Reasoning

The applicant offered no documentary evidence of requests to the Registrar for retrieval of the court files. She had initiated divorce proceedings in the San Mateo County Court in the USA over the same marriage while the appeals were pending, undermining her candour. The respondent had since obtained the decree absolute. Following Ratnam v Cumarasamy and Savill v Southend Health Authority, extension of time requires material on which discretion can be exercised, which was absent.

p. 3

Legal principles established

#
  • An application for restoration of an appeal dismissed for non-attendance must be made within thirty days of the dismissal and the applicant must show sufficient cause for the non-appearance; the 30-day requirement is mandatory.
  • Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps in the sequence of events.
  • Where counsel, as agent vested with authority to perform duties, fails to perform, the principal bears the consequences; a client cannot simply blame an advocate's inaction without pursuing the matter.
  • Rules of court must prima facie be obeyed; extension of time requires material on which the court can exercise its discretion, otherwise a party in breach would have an unqualified right to extension defeating the timetable purpose of the rules.

Court orders

#
  1. 1.The application dated 30th January, 2020 is dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nairobi
H.C Divorce Cause No. 179 of 2009
Jurisdiction invoked
Rules 4 and 102(1) of the Court of Appeal Rules and Sections 3, 3A and 3B of the Appellate Jurisdiction Act

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.

Cite this brief

#

Cite this brief

Caselaw, "BML v WM [2020] KECA 186 (KLR)", Case Analysis (2020). Civil Appeal (Application) No. 230 of 2015. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/186/eng@2020-11-20

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