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Court of AppealDismissedCivil Appeal No. 211 of 1998

Mohammed Yakub & Mohammed Yusuf t/a Yasser Butchery v Badur Nasa Saidi Nashean Robert M Chege t/a Covenant Auctioneers [2000] KECA 253 (KLR)

Court of Appeal
29 November 2000
249 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to restore a dismissed appeal because the advocate's vague explanation for missing court wasn't backed by evidence from her clerk.

What this practically means

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Executive summary

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This ruling of the Court of Appeal at Nairobi, delivered by Kwach, Akiwumi and Lakha, JJ.A, determines an application to restore an appeal that had been dismissed under Rule 99(1) of the Court of Appeal Rules for failure to appear. The appeal, Civil Appeal No. 211 of 1998, was brought by Mohammed Yakub and Mohammed Yusuf, trading as Yasser Butchery, against the respondents trading as Covenant Auctioneers, from a ruling of the High Court of Kenya at Nairobi (O'Kubasu J) dated 31 May 1996 in H.C.C.C. No. 1945 of 1995. The applicants sought restoration on the basis that their advocate on record, Mrs Rodrigues, had been prevented by sufficient cause from appearing when the appeal came up. The court reaffirmed the governing principle: an appeal dismissed under Rule 99(1) for non-appearance may be restored where it is shown that the advocate was prevented by sufficient cause from attending. It held, however, that the affidavit sworn by Mrs Rodrigues was hollow and fell short of that threshold. The court indicated that the outcome would have been different had the advocate's clerk, who on the advocate's own deposition failed to instruct her while she was busy elsewhere, also sworn an affidavit. Since no sufficient cause was established, the court held this to be a case where the omission of the advocate on record should be visited upon her client. The application to restore the appeal was dismissed with costs to the respondents, leaving the appeal dismissed and the High Court ruling of 31 May 1996 undisturbed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an appeal dismissed under Rule 99(1) for failure to appear could be restored, that is, whether the advocate on record was prevented by sufficient cause from appearing
  2. 2.Whether the omission of the advocate on record should be visited upon her clients

Key legal issues

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01

What constitutes sufficient cause for the restoration of an appeal dismissed under Rule 99(1) for failure to appear

Holding

The applicant must show that the advocate on record was prevented by sufficient cause from appearing; a bare affidavit by the advocate asserting that she was engaged elsewhere does not meet the threshold

Reasoning

The court accepted that restoration is available where sufficient cause is shown, but found the advocate's affidavit hollow and unconvincing. It observed that the case would have been different had the advocate's clerk, who on her own deposition failed to instruct her while she was busy elsewhere, sworn a supporting affidavit. Without such corroboration the non-appearance was not sufficiently explained, and the application failed.

p. 1
02

Whether the omission of the advocate on record should be visited upon the client

Holding

Where no sufficient cause for the advocate's non-appearance is established, the client bears the consequences of the advocate's omission and the appeal remains dismissed

Reasoning

Although litigants are generally not to be penalised for their advocate's faults, the court held that the principle does not assist where the advocate's affidavit fails to establish sufficient cause. On the uncorroborated material before it, the court concluded that this was not a case in which the advocate's omission should be excused, so the client must bear the dismissal of the appeal.

p. 1

Legal principles established

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  • An appeal dismissed under Rule 99(1) for failure to appear may be restored only where the applicant shows that the advocate on record was prevented by sufficient cause from appearing
  • A bare or hollow affidavit by the advocate on record does not constitute sufficient cause, and where none is shown the omission of the advocate is visited upon the client

Court orders

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  1. 1.The application to restore the applicants' appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

majority
majority
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1945 of 1995
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal; the application arises under Rule 99(1) of the Court of Appeal Rules (dismissal of an appeal for failure to appear and its restoration)

Relief refused

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Restoration of the appellants' appeal dismissed under Rule 99(1) for failure to appear

The affidavit sworn by the advocate on record did not establish sufficient cause for her non-appearance, and it was not supported by an affidavit from her clerk who, on her own deposition, had failed to instruct her

p. 1

Costs

The application to restore the applicants' appeal is dismissed with costs for the Respondents.

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.

When an appeal has been dismissed under Rule 99 (1) for failure to appear, the appeal may be restored if in this case, it can be shown that the advocate on record Mrs Rodrigues, was prevented by sufficient cause from appearing.
p. 1Restoration of appeal dismissed under Rule 99(1) - sufficient cause
The rather hollow affidavit sworn to by her in this regard, does not constitute sufficient cause.
p. 1Adequacy of the advocate's affidavit in support of restoration
It would have been different if there had been another affidavit by her clerk who as deponed in her affidavit, had failed to instruct the advocate leading Mrs Rodrigues who was busy elsewhere, to be in court.
p. 1Need for a corroborating affidavit from the clerk
In the result, the application to restore the applicants' appeal is hereby dismissed with costs for the Respondents.
p. 1Final orders - restoration application dismissed with costs

Issues in the judgment

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minor

The cause title lists 'RESPONDENTS' in the plural but the respondents' names run together on a single line without a conjunction, so it is unclear whether there is one respondent or two

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mohammed Yakub & Mohammed Yusuf t/a Yasser Butchery v Badur Nasa Saidi Nashean Robert M Chege t/a Covenant Auctioneers [2000] KECA 253 (KLR)", Case Analysis (2000). Civil Appeal No. 211 of 1998. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2000/253/eng@2000-11-29

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