BML v WM [2020] KECA 186 (KLR)
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
#Key legal issues
#Whether the applicant satisfied the two conditions for restoration under Rule 102(1) of the Court of Appeal Rules
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.
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.
Whether the mistake or inaction of the applicant's advocates excused her non-attendance
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.
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.
Whether the applicant's conduct and the six-month delay disentitled her to the discretionary relief
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.
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.
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.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.
- Sabriye v Ndolo & 4 others (Environment and Land Case E108 of 2022) [2026] KEELC 2423 (KLR)[2026] KEELC 2423 (KLR)30 Apr 2026
- Sabriye v Ndolo & 4 others (Environment and Land Case E108 of 2022) [2026] KEELC 2423 (KLR)[2026] KEELC 2423 (KLR)30 Apr 2026applied
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.