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Court of AppealDismissedKisumu Civil Appeal No. 63 of 2016· [2020] KECA 309 (KLR)

Daqare Transporters Limited v Chevron Kenya Limited [2020] KECA 309 (KLR)

Court of Appeal of Kenya
9 October 2020
HOHannah OkwenguPKP. O. KiageFSF. Sichale
2,181 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 confirmed that blaming your lawyer won't automatically revive a dismissed case — courts will scrutinise the litigant's own conduct.

What this practically means

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Executive summary

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The appellant had filed a pre-emptive suit in 2006 seeking to restrain Chevron Kenya Limited from terminating a 13-year Road Transport Carriage Agreement and to compel specific performance or damages. The dispute was referred to arbitration by consent, but the arbitral proceedings repeatedly stalled, largely because the appellant failed to pay arbitral fees. In March 2013 the respondent moved to terminate the tribunal's mandate and dismiss the suit for want of prosecution; in March 2015 Maina, J. gave the appellant sixty days to take steps to move the matter. The suit was fixed for hearing on 16th September 2015 but, on the material day, neither party attended and the judge dismissed it for non-attendance. The appellant's application to set aside the dismissal and reinstate the suit, founded on the claim that its former advocate had failed to notify it of the hearing date, was dismissed on 11th February 2016 on the ground that both party and advocate bear a duty under Section 1A(3) of the Civil Procedure Act to further the overriding objective. The Court of Appeal, comprising Okwengu, Kiage and Sichale, JJ.A, in a single judgment of the court, dismissed the appeal. It held that the mistake-of-counsel rule has no blanket or doctrinal status, that the conduct of the litigant blaming counsel must always be examined, and that the appellant's documented indolence - unpaid arbitral fees, ignored correspondence and an advocate frustrated for want of instructions - justified the judge's refusal to reinstate. The judge had also properly weighed the prejudice to the respondent, including fading witness memory. The decision below was affirmed and the appeal dismissed with costs to the respondent.

Key legal issues

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01

Whether the judge exercised her discretion judiciously in refusing to reinstate the suit

Holding

Yes; the judge properly considered the appellant's indolence, the duty under Section 1A(3) of the Civil Procedure Act, and the prejudice to the respondent.

Reasoning

The court held discretionary power derives from the law and must be exercised on legal principles and the circumstances of each case to do substantial justice. The record showed the appellant took no steps to prosecute the suit, failed to pay arbitral fees that stalled proceedings, and gave no explanation for its indolence. The judge properly considered the respondent's prejudice, including eroding witness memory and difficulty tracing witnesses. The appeal was found devoid of merit and dismissed with costs.

p. 3
02

Whether the mistake of counsel ought not to be visited upon an innocent litigant

Holding

The rule does not have blanket application; the litigant's own conduct is decisive.

Reasoning

The court held that the adage rule lacks doctrinal status and that a court must examine the conduct of the party blaming counsel. Here, the appellant's advocate was present in court when the hearing date was fixed, the appellant ignored communications about unpaid arbitral fees, and its advocate threatened to cease acting for want of instructions. Blaming previous counsel without explaining the litigant's own action was insufficient. The appellant shared responsibility for the dismissal, so the judge did not err.

p. 3

Legal principles established

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  • The rule that the mistake of counsel should not be visited upon an innocent litigant is not absolute; the court must examine the conduct of the litigant blaming counsel before reinstating a suit.
  • Blaming previous counsel on record is insufficient without an explanation of the steps the litigant personally took to prosecute the matter.
  • An appellate court interferes with a judge's exercise of discretion only where the judge misapprehended the facts, misdirected himself on law, took into account irrelevant matters, failed to take into account relevant considerations, or reached a plainly wrong decision.
  • In deciding whether to reinstate a suit dismissed for non-attendance, the court weighs the prejudice to the opposing party.

Court orders

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  1. 1.The appeal is dismissed
  2. 2.Costs of the appeal awarded to the respondent

Authorities

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Legislation

  • Constitution of KenyaArticle 48
  • Constitution of KenyaArticle 159
  • Constitution of KenyaArticle 165
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 63E
  • Civil Procedure RulesOrder 12 Rule 7

Cases cited (4)

  • Patriotic Guards Ltd v James Kipchirchir Sambu
    [2018] eKLR
  • Shah v Mbogo & Another
    [1967] EA 1116
  • Rajesh Rughani v Fifty Investments Limited & Another
    [2016] eKLR
  • Tana and Athi Rivers Development Authority v Jeremiah Kimigho Mwakio & 3 Others
    [2015] eKLR
On appeal from
High Court of Kenya at Kisumu
HCCC No. 143 of 2006
Jurisdiction invoked
First appellate jurisdiction over the High Court (Constitution of Kenya, Article 164; appeal against ruling in civil suit)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (11)

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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, "Daqare Transporters Limited v Chevron Kenya Limited [2020] KECA 309 (KLR)", Case Analysis (2020). Kisumu Civil Appeal No. 63 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/309/eng@2020-10-09

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