Oginga v Moko (Civil Appeal (Application) 33 of 2019) [2024] KECA 1830 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated an appeal dismissed for non-attendance, ruling that medical evidence of illness shortly before a hearing date is enough to justify the missed appearance.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has shown sufficient cause, under the proviso to Rule 102(1) of the Court of Appeal Rules, 2010, to warrant restoration of her appeal dismissed for non-attendance
- 2.Whether paragraphs of the supporting affidavit deposed to by the client concerning her advocate's illness should be struck out as offending the Oaths and Statutory Declarations Act
- 3.Whether the annexures to the supporting affidavit should be expunged for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules
Key legal issues
#Whether the applicant demonstrated sufficient cause to restore the appeal dismissed for non-attendance
Yes. On a balance of probabilities, medical evidence of fragile health shortly before the hearing date, coupled with counsel's statement as an officer of the Court that he was unwell, established sufficient cause
The court held that the applicant was not required to show that she or her advocate was physically in hospital on 23rd February, 2021. Documents showing a fragile medical condition shortly before the hearing date supported a deductive inference that they were still unwell on the hearing date. The court applied a balance of probabilities standard, noted the absence of malicious motive, and deferred to counsel's oath as an officer of the Court.
Whether technical objections to the affidavit (deposition by client about advocate's illness; unmarked annexures) should determine the application
No. The court declined to decide on formalistic grounds, applying Article 159(1)(d) of the Constitution and a substantive-prejudice test
While acknowledging the slovenliness of the drafting and the ideal that depositions on counsel's illness should come from the advocate himself, the court held the client had a basis to depose (she heard and believed it). Similarly, defects in annexure commissioning did not automatically render them inadmissible; the test is prejudice, mockery of due process, or bad faith. The deficiencies were forgiven under Article 159(1)(d).
Legal principles established
#- Sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps in the sequence of events
- A litigant need not demonstrate that they were physically in hospital on the actual hearing date to establish sufficient cause; documents showing a fragile medical condition shortly before the hearing date suffice on a balance of probabilities
- Technical defects in affidavits and annexures (such as improper commissioning or stamping) do not automatically render them inadmissible; the substantive test is prejudice, mockery of due process, or bad faith
Court orders
#- 1.The application dated 3rd March, 2021 is allowed
- 2.The appeal dismissed on 23rd February, 2021 for non-attendance is reinstated
- 3.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Migori ELC No. 192 of 2017
- Jurisdiction invoked
- Proviso to Rule 102(1) and Rule 102(3) of the Court of Appeal Rules, 2010 (application for restoration of an appeal dismissed for non-attendance)
Relief refused
#Respondent's prayer to strike out paragraphs of the supporting affidavit alleging the advocate's illness (deposed by the client)
The technical deficiencies were not sufficient to determine the issue; the applicant subjectively believed the advocate was ill and the court prioritised substantive justice over form
Respondent's prayer to expunge all annexures for non-compliance with Rule 9 of the Oaths and Statutory Declarations Rules
Failure to comply with formalities does not automatically render annexures inadmissible; the test is whether the failure was prejudicial, mocking of due process, or in bad faith — none of which was shown
Costs
Costs of this application will be in the cause
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that we hereby allow the application dated 3rd March, 2021. The appeal herein is reinstated. The costs of this application will be in the cause.
Suficient cause must therefore be rational, plausible, logical, convincing, reasonable and truthful. It should not be an explanation that leaves doubt in a Judge's mind.
There is no requirement to show, with specificity, that on the actual hearing date, the party or the lawyer was actually in hospital.
The test is substantive: can it be said that the failure in process was prejudicial to the other side? Was it otherwise so bad that it would make a mockery of procedural due process?
Issues in the judgment
#The name of the respondent is never stated in the judgment; only the applicant (Risper Akeyo Oginga) is identified by name
The appeal number / case number of the present application before the Court of Appeal is not stated anywhere in the judgment
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.
- Kigumba & another v Marete & 3 others (Enviromental and Land Originating Summons E030 of 2025) [2026] KEELC 348 (KLR)[2026] KEELC 348 (KLR)26 Jan 2026followed
- Mercy N. Nguta & another v 1st Respondent & 2nd Respondent (Petition reinstated)2 Apr 2025
Cite this brief
#Cite this brief
Caselaw, "Oginga v Moko (Civil Appeal (Application) 33 of 2019) [2024] KECA 1830 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1830/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.