Florence Leitich v Ann Wambui Mwangi

Rule 58 governs non-appearance and reinstatement. Where an application is dismissed for non-attendance, the party in whose absence it was determined may apply to restore or re-hear it upon showing sufficient cause. Filing a fresh application for the same orders circumvents this scheme, and the court held both parties' res judicata arguments inapplicable because the correct question was the reinstatement route. Courts generally allow reinstatement where sufficient cause for non-attendance is shown and the application is made promptly.

The court applied the catalogue of abusive conduct set out in Patrick Macharia Nderitu, including instituting a multiplicity of actions on the same subject matter between the same parties and filing an application in respect of a matter already the subject of an earlier application. The applicant was gambling on the judicial process; the addition of a conservatory-order prayer could not change the character of the earlier dismissed application. The abuse lies in the multiplicity and manner of exercise of the right, not the right itself.

Both counsel devoted their submissions to res judicata, arguing about whether the earlier application was heard and determined on the merits. The court held this was totally inapplicable: an application dismissed for non-attendance is not determined on the merits, and the operative question was whether the applicant could file fresh applications rather than seek reinstatement. The court noted both parties failed to grasp the applicable rule.