James Kaluko Kyalo v Julius Mwangangi Mulu [2019] KEELC 900 (KLR)
The bottom line
#The High Court in Mombasa refused to reinstate a dismissed application, ruling that unverified excuses for missing court and unreasonable payment terms don't merit a second chance.
What this practically means
#Executive summary
#Key legal issues
#Whether the non-attendance of counsel constituted a sufficient ground for reinstatement of the dismissed application
The court declined to reinstate, finding the explanation for non-attendance unsupported and unconvincing.
Counsel deposed that she mistakenly believed the matter listed was Judicial Review No. 4 of 2019 before Justice Ogolla. The respondent demonstrated that the JR application had been dismissed on 9 April 2019 and could not have been listed on 13 June 2019, the date the application for review was dismissed. No cause list was produced to support the alleged mix-up, so the court was not persuaded that non-attendance was excusable.
Whether any substantial interest justified reinstatement notwithstanding the weak excuse
No. The dismissed application merely sought to vary monthly instalments for a taxed bill of costs, and the proposed instalments of Kshs. 5,000/= over about 10 years were unreasonable.
The court assessed the substance of the dismissed application. The taxed bill was Kshs. 622,866.21/= and the applicant sought to liquidate it at Kshs. 5,000/= monthly, which would take roughly 10 years. The court considered that schedule extremely unreasonable and found nothing of substance warranting reinstatement merely to re-argue the instalment terms.
Legal principles established
#- A party seeking reinstatement of an application dismissed for non-attendance must provide credible support for the excuse offered, such as a cause list corroborating a court appearance conflict
- The court will not exercise its discretion to reinstate an application where no substantial prejudice or matter of substance would justify it
Court orders
#- 1.The application dated 21 June 2019 seeking reinstatement of the dismissed application for review is dismissed
- 2.Costs of the application awarded to the respondent
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kaluko Kyalo v Julius Mwangangi Mulu [2019] KEELC 900 (KLR)", Case Analysis (2019). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/900/eng@2019-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.