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High CourtAllowed

Application dated 7th December, 2018 (set aside dismissal of Appeal for non-attendance and reinstate stay of execution)

High Court of Kenya (registry not expressly stated; matter handled alongside an appeal before Hon. Justice Mbogholi)
14 November 2019
BJB. Thuranira Jaden
630 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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If a court dismisses your appeal due to a clerical error in the cause list, you can successfully apply to have the dismissal set aside.

What this practically means

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Executive summary

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This ruling by B. Thuranira Jaden J, delivered at Nairobi on 14th November 2019, determined an application dated 7th December 2018 seeking to set aside orders dismissing an appeal for non-attendance issued on 26th September 2018, and to reinstate orders for stay of execution previously issued. The Applicant explained that on 20th September 2018 the Applicant and the 2nd Respondent appeared before Hon. Justice Mbogholi where the matter was listed to confirm filing of supplementary affidavits and for directions; the Applicant only later discovered the appeal had been dismissed for non-attendance, blaming a mix-up in the cause list which failed to capture the case numbers and party names correctly. The 1st Respondent opposed via grounds of opposition dated 7th January 2019, terming the application an afterthought, an abuse of court, and hinged on falsehoods, arguing the Applicant was indolent and had lost interest in the appeal, and proposing conditions (deposit of decretal sum, fixing the appeal for hearing, throwaway costs) if reinstatement were granted. The 2nd Respondent supported the application, also citing the cause-list mix-up. The court perused the file and found that on 26th September 2018 only counsel for the 2nd Respondent was in court; the court's cause list showed the correct file but wrong parties, while Justice Mbogholi's cause list showed the wrong number but the correct party names. Persuaded by this incongruence, the court allowed the application with costs in cause, setting aside the dismissal and reinstating the stay of execution orders.

Key legal issues

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01

Whether the dismissal of the appeal for non-attendance should be set aside

Holding

Yes - the court found the cause lists for the relevant date contained errors (wrong file/parties), justifying reinstatement.

Reasoning

The court perused the file and found that on 26th September, 2018 only counsel for the 2nd Respondent was present when the appeal was dismissed. The cause list for the court showed the correct file but wrong parties, while Justice Mbogholi's cause list showed the wrong number but the correct party names. This incongruence persuaded the court to allow the application.

p. 2

Legal principles established

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  • Where a dismissal for non-attendance results from an incongruence or mix-up in the court's own cause list, the court will set aside the dismissal and reinstate prior orders.

Court orders

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  1. 1.The orders dismissing the Appeal for non-attendance issued on 26th September, 2018 set aside
  2. 2.The orders for stay of execution issued before reinstated
  3. 3.Application allowed with costs in cause
Jurisdiction invoked
Inherent power of the court to review/set aside its own orders dismissing an appeal for non-attendance (no specific provision cited in the judgment)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Application dated 7th December, 2018 (set aside dismissal of Appeal for non-attendance and reinstate stay of execution)", Case Analysis (2019). . Source:

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