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Court of AppealAllowedNot stated in the judgment

Route 3 Company Limited & another v Nairobi City County & another (Civil Appeal (Application) 188 of 2019) [2025] KECA 315 (KLR)

Court of Appeal of Kenya
21 February 2025
2,036 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 application dismissed after a lawyer's internet call dropped, confirming courts will forgive excusable technical mistakes if acted on quickly.

What this practically means

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Executive summary

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Before the Court of Appeal at Nairobi (K. M'Inoti, F. Tuiyott and F. Ochieng, JJAA) was a notice of motion dated 24th June 2024 brought under Rule 58(3) & (4) of the Court of Appeal Rules and Articles 48, 50(c) and 159(2)(d) of the Constitution, seeking to vary or set aside the Court's order of 28th May 2024 dismissing the applicants' notice of motion dated 17th October 2019 for non-attendance, and to reinstate that application. Counsel for the applicants explained that his call dropped for about three minutes during the virtual hearing and, on logging back in, he was informed the application had been dismissed; he urged that a mistake of counsel should not be visited on the client. The 2nd respondent opposed, questioning representation and asserting the explanation was unbelievable and that the applicants were dilatory. The Court identified the single issue as whether sufficient cause had been shown, it being common ground that the application was filed within 30 days. Relying on Peter Nyamu Kabeu v Eliud Karani, Belinda Murai v Amos Wainaina, Philip Chemowolo v Augustine Kubede and CMC Holdings Ltd v James Mumo Nzioka, the Court held that the explanation was corroborated by the record and conceded as possible by the 2nd respondent's counsel, and that there was no delay in bringing the application. The Court allowed the application, reinstated the application dated 17th October 2019, directed it be set down for hearing without undue delay, and ordered costs in the cause.

Questions the Court framed

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

  1. 1.Whether the application for reinstatement of the application dated 17th October 2019, dismissed for non-attendance on 28th May 2024, is merited - specifically whether sufficient cause for the applicants' counsel's non-attendance has been shown, the application having been filed within 30 days.

Key legal issues

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01

Whether sufficient cause was shown for counsel's non-attendance when the application dated 17th October 2019 was dismissed on 28th May 2024

Holding

The Court found sufficient cause shown: the record confirmed counsel logged into the virtual session shortly after the dismissal and the 2nd respondent's counsel conceded the call may have dropped. The application was also concededly filed within 30 days.

Reasoning

The Court framed the single issue as whether sufficient cause was shown, since timeliness within 30 days was common ground. It accepted that counsel's call dropped for about three minutes and he was informed on logging back in that the application had been dismissed. The record corroborated this and the 2nd respondent's counsel conceded it was a possibility. The application was filed promptly, with no delay, and the mistake of counsel should not be visited on the client; the interests of justice favoured reinstatement.

p. 5
02

The scope of a reinstatement application

Holding

The Court, relying on Peter Nyamu Kabeu v Eliud Karani, held that it must not consider the merits of the application sought to be reinstated.

Reasoning

Citing its earlier decision in Peter Nyamu Kabeu v Eliud Karani, Civil Application No. Nai. 293 of 2000, the Court reasoned that on a reinstatement application it must not deal with the merits or demerits of the underlying application, lest it trespass upon the territory of another judge should that dismissed application ever come up for hearing.

p. 4

Legal principles established

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  • Rule 58(3) and (4) of the Court of Appeal Rules sets two conditions for reinstatement of an application dismissed for non-attendance: sufficient cause for absence must be shown and the application must be made within 30 days of the decision (or within 30 days of the unserved party first hearing of it).
  • In a reinstatement application the court does not consider the merits or demerits of the application sought to be reinstated.
  • The decision whether or not to reinstate an application for non-attendance is discretionary, and the discretion is properly exercised to save a litigant from injustice caused by an excusable mistake, inadvertence, accident or error.

Court orders

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  1. 1.The applicants' application dated 17th October 2019, dismissed on 28th May 2024, is reinstated
  2. 2.The reinstated application dated 17th October 2019 be set down for hearing and determination without undue delay, directions on the main appeal having already been issued
  3. 3.Costs of the application shall be in the cause

The bench

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

majority
majority
majority
Jurisdiction invoked
Rule 58(3) & (4) of the Court of Appeal Rules, and Articles 48, 50(c) & 159(2)(d) of the Constitution

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.

In the premises, considering that there was no delay in bringing this application and being satisfied with the explanation for non-attendance, we allow the application and hereby reinstate the applicants' application dated October 17, 2019.
p. 5Final orders - reinstatement of the dismissed application
As directions on the main appeal have already been issued, we direct that the said application be set down for hearing and determination without undue delay.
p. 5Directions for expeditious hearing of the reinstated application
Costs of this application shall be in the cause.
p. 5Costs
The two conditions for the reinstatement of an application dismissed or allowed for non-attendance are: whether a suficient cause has been shown and whether the application is made within 30 days of the decision
p. 4Conditions for reinstatement under rule 58(3) and (4)

Issues in the judgment

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minor

The judgment as supplied does not state the appeal/petition case number, the names of the applicants, respondents, or the subordinate decision appealed from; the record of appeal is referred to only as 'the record of appeal dated 7th May 2019'.

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, "Route 3 Company Limited & another v Nairobi City County & another (Civil Appeal (Application) 188 of 2019) [2025] KECA 315 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/315/eng@2025-02-21

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