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Court of AppealPartially AllowedNot stated in the judgment

BENSON NGUGI MUIRURI v KENYA NATIONAL CAPITAL CORPORATION [2000] KECA 67 (KLR)

Court of Appeal of Kenya
19 January 2000
RKR. O. Kwach
189 words in judgment
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The bottom line

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Kenya's Court of Appeal reinstated a case dismissed when counsel skipped court and sent a clerk, but only on strict payment terms.

What this practically means

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Executive summary

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This was a Chamber application before the Court of Appeal in Nairobi seeking reinstatement of an application that Kwach JA had dismissed on 21st April 1999 for non-attendance. The applicant's counsel, Mr Khaminwa, had sent a clerk to Court instead of attending personally. The judge observed that although the matter had for some reason been listed before two Judges of Appeal, Kwach and Owuor JJA, this did not justify sending a clerk who could not possibly deal with the matter, and counsel had offered no explanation for his own absence. Treating the matter as very borderline, the court extended the benefit of the doubt to counsel but only on terms. The application for reinstatement was allowed: the order of 21st April 1999 was set aside and the Motion reinstated. The applicant was ordered to pay the respondent's costs, assessed at Shs 10,000/-, within 10 days, in default of which the application would stand dismissed with costs without any further order. The ruling was dated and delivered at Nairobi on 19th January 2000 and was authored by R. O. Kwach, Judge of Appeal, sitting alone. No authorities or statutory provisions are cited in the judgment, and the decision turns on the court's discretion to reinstate matters dismissed for non-attendance, exercised here on punitive costs terms.

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 dismissed on 21st April 1999 for non-attendance should be reinstated
  2. 2.Whether counsel's failure to attend, having sent only a clerk, justified reinstatement and on what terms

Key legal issues

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01

Whether non-attendance by counsel, with only a clerk sent to Court, warrants reinstatement of a dismissed application

Holding

Reinstatement was allowed as a borderline case, with the applicant given the benefit of the doubt, but on terms as to costs

Reasoning

The court noted the matter had been listed before two Judges of Appeal, but held that this did not justify counsel sending a clerk who could not deal with the matter. Counsel did not explain his absence. Exercising discretion, the judge gave the benefit of doubt but imposed terms: costs of Shs 10,000/- payable within 10 days, failing which the reinstated application would stand dismissed with costs.

p. 2

Legal principles established

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  • A party whose advocate sends a clerk to Court, knowing a clerk cannot deal with the matter, cannot justify non-attendance; reinstatement of a matter dismissed for non-attendance is discretionary and may be granted on terms, including costs payable within a fixed period with dismissal in default.

Court orders

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  1. 1.The application for reinstatement is allowed
  2. 2.The order dated 21st April 1999 dismissing the application for non-attendance is set aside
  3. 3.The Motion is reinstated
  4. 4.The applicant to pay the respondent's costs assessed at Shs 10,000/- within 10 days
  5. 5.In default of payment, the application to stand dismissed with costs without any further order

The bench

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

RK
majority

Wrote the judgment

Jurisdiction invoked
Inherent/appellate jurisdiction of the Court of Appeal to reinstate a matter dismissed for non-attendance (provision not stated in the judgment)

Relief refused

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Unconditional reinstatement without terms

Reinstatement granted only on terms as to payment of the respondent's costs, with dismissal in default

p. 2

Costs

The applicant will pay the respondent's costs assessed at Shs 10,000/- within 10 days, and in default this application to stand dismissed with costs without any further order.

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.

Accordingly, I allow the application, set aside my order dated 21st April 1999 and reinstate the Motion.
p. 2Final orders - reinstatement
The applicant will pay the respondent=s costs assessed at Shs 10,000/- within 10 days, and in default this application to stand dismissed with costs without any further order.
p. 2Costs and default terms
But this cannot justify the decision by Mr Khaminwa to send his clerk to Court knowing fully well that a clerk could not possibly deal with the matter on his behalf.
p. 2Counsel's duty of attendance

Issues in the judgment

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minor

The judgment does not state the case number, the names of the parties, or the nature of the underlying Motion; the applicant's advocate (Mr Khaminwa) is named but the parties are referred to only as 'the applicant' and 'the respondent'.

minor

The judgment appears to be a single-judge Chamber ruling delivered by Kwach JA, though it recites that the underlying application was listed before two Judges of Appeal (Kwach and Owuor JJA); Owuor JA did not sit on this reinstatement application.

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, "BENSON NGUGI MUIRURI v KENYA NATIONAL CAPITAL CORPORATION [2000] KECA 67 (KLR)", Case Analysis (2000). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/67/eng@2000-04-05

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