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Court of AppealAllowedCivil Application No. (undesignated) arising from Civil Appeal No. 116 of 2018· [2022] KECA 8 (KLR)

Omar v Patrick M. Nyamu t/a Global Woods and Agro Hardware (Civil Application 19 of 2019) [2022] KECA 8 (KLR)

Court of Appeal of Kenya
21 January 2022
SKS. Gatebmu KairuAMA. Mbogholi MsaghaPNP. Nyamweya
1,086 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 diarising mix-up caused both parties to miss the hearing, ruling clients shouldn't pay for clerical errors.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Mombasa (Kairu, Msagha and Nyamweya, JJ.A) delivered on 21st January 2022 on the applicant's application to review and set aside the Court's orders of 5th March 2019 in Civil Appeal No. 116 of 2018, by which the appeal had been dismissed for non-attendance. The applicant explained that a consent order of 11th October 2018 in Civil Application No. 28 of 2018 had provided for a stay pending the hearing of the appeal; the hearing date was inadvertently diarised as 6th March 2019 instead of 5th March 2019 owing to a miscommunication between counsel and the advocate's clerk, and the respondent was even served with a hearing notice bearing the wrong date, so neither party attended. The applicant relied on Rule 102 of the Court of Appeal Rules and authorities on 'sufficient reason', including Savings & Loan Kenya Ltd v Onyancha Bwomote and Kitts Mbati Mukonyole. The respondent did not participate despite service. The Court held that the application was filed within the 30-day period prescribed by Rule 102(3) and that the inadvertent mix-up between the advocate and his clerk ought not be visited upon the applicant. It allowed the application, set aside its orders of 5th March 2019, restored Civil Appeal No. 116 of 2018 for hearing, reinstated the consent order of 11th October 2018, and ordered that costs abide the outcome of the appeal.

Key legal issues

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01

Test for reinstatement of an appeal dismissed for non-attendance under Rule 102

Holding

The applicant must bring the application within 30 days and show sufficient cause for non-attendance; once sufficient reason is established, the Court's discretion should be exercised to set aside the dismissal so the appeal is heard on its merits.

Reasoning

Rule 102(1) clothes the Court with discretion to reinstate an appeal dismissed for non-attendance if the appellant demonstrates sufficient cause, while Rule 102(3) prescribes a 30-day window. Relying on Kitts Mbati Mukonyole and the Chemwolo principle, the Court held that the principles for setting aside default judgments apply equally to reinstatement of dismissed appeals. The applicant filed within time, and the diarised miscommunication between counsel and his clerk, evidenced by the office diary, the air ticket and the wrongly served hearing notice, explained the non-attendance of both parties. A litigant should not suffer injustice from an excusable mistake of counsel.

p. 2

Legal principles established

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  • An appeal dismissed for non-attendance may be reinstated where the appellant applies within 30 days and demonstrates sufficient cause for the failure to appear; an inadvertent mix-up in communication between an advocate and his clerk should not be visited upon the litigant.

Court orders

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  1. 1.The Court's ruling and orders of 5th March 2019 in Civil Appeal No. 116 of 2018 are set aside
  2. 2.Civil Appeal No. 116 of 2018 is restored for hearing
  3. 3.The consent order dated 11th October 2018 in Civil Application No. 28 of 2018 is reinstated
  4. 4.Costs shall abide by the outcome of the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 102(1)
  • Court of Appeal RulesRule 102(3)

Cases cited (5)

  • Savings & Loan Kenya Ltd v Onyancha Bwomote
    [2014] eKLR
  • Wilson Cheboi Yego v Samuel Kipsang Cheboi
    [2019] eKLR
  • Musa Musyimi & 2 others v Martin Mati Mulinge & another
    [2021] eKLR
  • Kitts Mbati Mukonyole v Levi Ndombi Mukonyole
    [2013] eKLR
  • Philip Keipto Chemwolo and Mumias Sugar Co. Ltd v Augustine Kubende
    (1982) 1 KAR
On appeal from
Court of Appeal of Kenya
Civil Appeal No. 116 of 2018
Jurisdiction invoked
Rule 102(1) of the Court of Appeal Rules (discretion to reinstate an appeal dismissed for non-attendance), read with Rule 102(3)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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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, "Omar v Patrick M. Nyamu t/a Global Woods and Agro Hardware (Civil Application 19 of 2019) [2022] KECA 8 (KLR)", Case Analysis (2022). Civil Application No. (undesignated) arising from Civil Appeal No. 116 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/8/eng@2022-01-21

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