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Court of AppealAllowedCivil Appeal (Application) 73 of 2014· [2022] KECA 1210 (KLR)

Macharia & 7 others v Mugo & another

Court of Appeal
4 November 2022
HOH. A. OmondiKLK. I. LaibutaPGP. M. Gachoka
626 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (H.A. Omondi, K.I. Laibuta and P.M. Gachoka, JJA) on a notice of motion dated 6th October 2016 brought under rule 102(1) of the Court of Appeal Rules, 2010, seeking reinstatement of Civil Appeal No. 73 of 2014, which had been dismissed for non-attendance on 3rd October 2016. The application was supported by an affidavit of the second appellant, Daniel Mwangi Mugo, who explained that the hearing notice had been served on the appellants' then advocates, RH Wanga & Co, but the advocate handling the matter had left the firm; the firm admitted the non-attendance was an honest mistake. The appellants had since instructed new advocates. The respondents did not file a replying affidavit or submissions. The court noted the application was filed three days after the dismissal, within the 30-day period required under rule 105(3). Although critical of the previous advocates' failure to explain their non-attendance, the court held it would be harsh to lock the applicants out of justice given their promptness. The application was allowed, the appeal reinstated for hearing, with no order as to costs. The decision restores the appeal to the hearing list; it does not disturb the substantive merits of the appeal, which remain to be determined.

Key legal issues

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01

Reinstatement of an appeal dismissed for non-attendance

Holding

The application for reinstatement filed within 30 days of dismissal, where the litigants acted promptly and the non-attendance was an advocate's mistake, warrants reinstatement.

Reasoning

The appeal was dismissed on 3rd October 2016 and the reinstatement application was filed on 6th October 2016, within the 30-day window. Although the previous advocates failed to attend and did not explain their absence, the court held it would be harsh to punish the litigants for their advocate's mistake given their promptness. The respondents filed no opposition. The court balanced the advocates' default against the applicants' right to be heard.

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Legal principles established

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  • A party who acts promptly in seeking reinstatement of an appeal dismissed for non-attendance should not be locked out of justice on account of an advocate's mistake, where the application is filed within the prescribed time.

Court orders

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  1. 1.The application dated October 6, 2016 is allowed
  2. 2.The appeal dismissed on 3rd October 2016 for non-attendance is reinstated for hearing
  3. 3.No order as to costs
Jurisdiction invoked
Rule 102(1) of the Court of Appeal Rules, 2010

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Macharia & 7 others v Mugo & another", Case Analysis (2022). Civil Appeal (Application) 73 of 2014. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1210/eng@2022-11-04

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