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Court of AppealAllowedNRB Civil Application No. 372 of 2018 (notice of motion dated 25th July, 2019)· [2021] KECA 88 (KLR)

Rachel Mukami Ngugi v Mercy Wanjiru Thogo

Court of Appeal of Kenya
22 October 2021
RNR. N. Nambuye
2,595 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated an application dismissed when the advocate missed hearing, ruling contradictory court registry notices justified the absence.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi (Nambuye, JA) on a notice of motion dated 25th July, 2019 in which the applicant sought to set aside an order dismissing her earlier application dated 13th December, 2018 for extension of time to lodge a notice and record of appeal out of time against a judgment of L. M. Gacheru, J of the Environment and Land Court, Thika. The earlier application had been dismissed by M. K. Koome, JA sitting as a single Judge on 23rd July, 2019 for non-attendance. The applicant explained that the registry served her advocates with contradictory hearing notices bearing conflicting dates, and that the registry had confirmed and displayed on its notice board that hearing was fixed for 25th July, 2019, on which date her advocate attended court only to learn of the dismissal two days earlier. The application was unopposed. The court held that under Rule 56(4) of the Court of Appeal Rules the thirty-day period for seeking reinstatement is mandatory, and the application, filed two days after dismissal, was timely. On the merits, the court found the registry's conflicting communications constituted sufficient cause for non-attendance, that no prejudice would befall the respondent, and distilled principles emphasizing substantive justice under Article 159, the overriding objective, and that dismissal is a draconian remedy to be used sparingly. The court allowed the application, set aside the single Judge's dismissal orders, reinstated the 13th December, 2018 application for priority hearing, and ordered costs to abide the outcome of the reinstated application.

Key legal issues

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01

Timeliness of the reinstatement application under Rule 56(4)

Holding

The application was filed within thirty days of the dismissal order and was therefore properly before the court.

Reasoning

The impugned dismissal was made on 23rd July, 2019 and the reinstatement application was filed on 25th July, 2019. Because Rule 56(4) uses the word 'shall', the thirty-day period is mandatory; compliance on the facts was undisputed and uncontroverted, so the court proceeded to determine the application on its merits.

p. 5
02

Sufficient cause for non-attendance

Holding

Conflicting hearing notices issued by the registry, coupled with a notice-board indication that hearing was on 25th July, 2019, constituted sufficient cause for the advocate's non-attendance on 23rd July, 2019.

Reasoning

The applicant exhibited contradictory hearing notices served by the Deputy Registrar bearing conflicting dates, and the registry had assured her advocates and displayed on the notice board that hearing was fixed for 25th July, 2019. This was uncontroverted by either the Deputy Registrar or the respondent, and no prejudice to the respondent was demonstrated. The dismissal resulted from registry error and should not be visited on the innocent applicant.

p. 5
03

Principles governing reinstatement applications

Holding

The court distilled principles for reinstatement, emphasizing substantive justice under Article 159, the overriding objective, balancing grounds for reinstatement against prejudice, and that dismissal is a draconian order to be employed sparingly.

Reasoning

Relying on authorities on reinstatement of appeals dismissed for want of prosecution, the court held the same principles apply to applications dismissed for non-attendance: litigation should be determined on merit, the Rules allowing extension complement those imposing timelines, and courts must balance reasonable grounds for reinstatement against prejudice to the opposite party, bearing in mind dismissal drives parties away from the seat of justice.

p. 3

Legal principles established

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  • An application to restore an application dismissed for non-attendance under Rule 56(3) must be filed within thirty days of the decision, and this timeline is mandatory.
  • The test for reinstatement under Rule 56(3) is that the absent party was prevented by sufficient cause from appearing when the application was called on for hearing.

Court orders

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  1. 1.The applicant's application dated 25th July, 2019 allowed in terms of prayers 2 and 3 thereof
  2. 2.The orders granted by the single Judge (M. K. Koome, JA) on 23rd July, 2019 set aside and substituted with an order reinstating the applicant's application dated 13th December, 2018 for hearing and determination on priority basis
  3. 3.Costs of the application to abide the outcome of the reinstated application
On appeal from
Environment and Land Court, Thika
Jurisdiction invoked
Article 159(2)(c), (d) and (e) of the Constitution of Kenya, 2010; Rules 56(3) and (4) and 57(1) and (2) of the Court of Appeal Rules; Sections 3A and 3B of the Appellate Jurisdiction Act

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, "Rachel Mukami Ngugi v Mercy Wanjiru Thogo", Case Analysis (2021). NRB Civil Application No. 372 of 2018 (notice of motion dated 25th July, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/88/eng@2021-10-22

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