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Court of AppealPartially AllowedNot stated in judgment

Oginga v Moko (Civil Appeal (Application) 33 of 2019) [2024] KECA 1830 (KLR)

Court of Appeal of Kenya
20 December 2024
2,517 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 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

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Executive summary

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This was an application, by notice of motion dated 3rd March 2021, to restore an appeal that the Court of Appeal had dismissed on 23rd February 2021 for non-attendance under Rule 102(1) of the Court of Appeal Rules, 2010. The underlying appeal challenged an Environment and Land Court judgment (Migori ELC No. 192 of 2017) which granted the respondent vacant possession of LR Kamagambo/Kabuoro/1251 and dismissed the applicant's counterclaim for specific performance of a sale agreement with her deceased husband. The applicant attributed the non-attendance to the illness of both herself and her advocate, exhibiting medical cards, prescriptions and photographs. The respondent opposed on three grounds: insufficiency of the cause; that the affidavit improperly deposed to the advocate's illness; and that the annexures offended Rule 9 of the Oaths and Statutory Declarations Rules. The court declined to resolve the matter on these technical objections, applying Article 159(1)(d) of the Constitution and formulating a substantive test of prejudice, mockery of due process, or bad faith. On the merits, the court held that sufficient cause requires a rational, plausible, logical, convincing, reasonable and truthful explanation, but that there is no requirement to prove hospital attendance on the actual hearing date; a fragile medical condition shortly before the hearing suffices on a balance of probabilities. Deferring to counsel's oath as an officer of the Court and the land-based subject matter, the court allowed the application, reinstated the appeal, and ordered costs in the cause. Judgment delivered at Kisumu on 20th December 2024 by Kiage, Tuiyott and Ngugi, JJA.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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. 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. 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

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01

Whether the applicant demonstrated sufficient cause to restore the appeal dismissed for non-attendance

Holding

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

Reasoning

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.

p. 5
02

Whether technical objections to the affidavit (deposition by client about advocate's illness; unmarked annexures) should determine the application

Holding

No. The court declined to decide on formalistic grounds, applying Article 159(1)(d) of the Constitution and a substantive-prejudice test

Reasoning

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).

p. 4

Legal principles established

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  • 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

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  1. 1.The application dated 3rd March, 2021 is allowed
  2. 2.The appeal dismissed on 23rd February, 2021 for non-attendance is reinstated
  3. 3.Costs of the application to be in the cause

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
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

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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

p. 4

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

p. 4

Costs

Costs of this application will be in the cause

Quotable passages

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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.
p. 5Final orders - reinstatement of appeal
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.
p. 4Meaning of sufficient cause
There is no requirement to show, with specificity, that on the actual hearing date, the party or the lawyer was actually in hospital.
p. 5Standard of proof for illness-based restoration applications
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?
p. 4Substantive test for technical defects in affidavits

Issues in the judgment

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minor

The name of the respondent is never stated in the judgment; only the applicant (Risper Akeyo Oginga) is identified by name

minor

The appeal number / case number of the present application before the Court of Appeal is not stated anywhere in the judgment

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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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, "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.