Macharia & 7 others v Mugo & another (Civil Appeal (Application) 73 of 2014) [2022] KECA 1210 (KLR) (4 November 2022) (Ruling) Neutral citation: [2022] KECA 1210 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL (APPLICATION) 73 OF 2014 HA OMONDI, KI LAIBUTA & PM GACHOKA, JJA NOVEMBER 4, 2022 BETWEEN WILLY WANYOIKE MACHARIA .................................................. 1ST APPELLANT DANIEL MWANGI MUGO .............................................................. 2ND APPELLANT ONESMUS NG’ANG’A MUGO ........................................................ 3RD APPELLANT MACHARIA MUGO ......................................................................... 4TH APPELLANT DANIEL MUTHOGA MACHARIA ................................................ 5TH APPELLANT SIMON MUGO MACHARIA .......................................................... 6TH APPELLANT MWANGI WANYOIKE ..................................................................... 7TH APPELLANT WANYOIKE MACHARIA ............................................................... 8TH APPELLANT AND DANIEL NG’ANG’A MUGO ......................................................... 1ST RESPONDENT BETH NJAMBI NJOROGE .......................................................... 2ND RESPONDENT (Being an application for review of the orders made on 3rd October 2016 in Nairobi Civil Appeal No. 73 of 2014) RULING 1. Before us is a notice of motion dated October 6, 2016 brought under rule 102(1) of the Court of Appeal Rules, 2010. 2. The application seeks an order for reinstatement of the appeal dated April 10, 2014, which was dismissed for non-attendance on October 6, 2016. https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1210/eng@2022-11-04 1
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3. The application was listed for hearing through the Go To online platform and, when called out, the appellant / applicants’ counsel was present, but the respondents were not represented. The court satised itself that the respondents’ advocate was duly served. 4. The application is supported by the adavit of Daniel Mwangi Mugo, the second appellant, who depones: that all the appellants had instructed the rm of RH Wanga & Co Advocates to act for them; that the appeal was listed for hearing on October 3, 2016, and that the hearing notice had been served on the said rm of advocates; that the advocate who was handling the rm had since left the law rm, and that they had no contact with him; that upon making enquiry in the court registry, they learnt that the appeal had been dismissed for non-attendance; that the law rm admitted that the non-attendance was due to an honest mistake; that the appellants are desirous of prosecuting the appeal; that they should not be punished on account of a mistake by the advocates; and that they have since appointed another rm of advocates, who led a notice of change of advocates on November 2, 2016. 5. We have carefully considered the application, the supporting adavit and the documents on record. The respondents have not led a replying adavit or written submissions in opposition to the application. 6. We note that the appeal was dismissed on October 3, 2016, and that this application was led on October 6, 2016, which was within 30 days from the date of the dismissal in issue as required under rule 105(3) of the Court of Appeal Rules, 2022. 7. This application was led by the previous advocates on record, RH Wanga & Co, and the least they should have done is to explain why they did not attend court. However, we note that the appellants acted promptly and led an application for reinstatement three days following the dismissal of the appeal. Whereas we do not condone the advocates’ mistake, we think it would be harsh to lock out the door of justice for the applicants, considering that the application for reinstatement was led within time. 8. In view of the foregoing, we allow the application dated October 6, 2016 and reinstate the appeal for hearing with no order as to cost. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF NOVEMBER, 2022. H. A. OMONDI ........................................... JUDGE OF APPEAL DR. K. I. LAIBUTA ............................................ JUDGE OF APPEAL M. GACHOKA, CIArb, FCIArb ........................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1210/eng@2022-11-04 2
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