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Court of AppealDismissedNot stated in the judgment copy· [2001] KECA 157 (KLR)

Joseph Matafari Situma v Nicholas Makhanu Cherongo [2001] KECA 157 (KLR)

Court of Appeal of Kenya
23 November 2001
335 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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If your lawyer is served with a court hearing notice but misses the hearing, you must quickly explain why — or the orders made in your absence will stand.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal of Kenya at Kisumu, delivered on November 23, 2001 by M. Ole Keiwua, JA, sitting as a single judge. The applicant sought, by an application dated March 16, 2001, a rehearing of the respondent's application of May 2, 2000 for extension of time within which to file a notice of appeal from a judgment of the superior court delivered on April 12, 1996, together with the setting aside of the orders made ex parte on June 16, 2000. The applicant asserted that he learned of the ex parte hearing only on February 17, 2001, alleging that the application had been served on his stepmother, Joyun, rather than on himself. The respondent countered that the hearing notice had been served on June 6, 2000 on Wekhulo & Co. advocates, who were on record for the applicant, and that they failed to attend court on June 16, 2000. The court held that a party served but absent must show that they were prevented from appearing for sufficient cause, and found that the applicant had not even attempted to explain Mr. Wekhulo's non-attendance. It further held that the applicant had thirty days from June 21, 2000, when Mr. Wekhulo indicated he had instructions, to bring an application under rule 55(4) for rehearing; the application, filed on March 20, 2001, was out of time. The application was dismissed with costs. No authorities were cited, and the copy analysed does not name the parties.

Key legal issues

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01

Whether a party served with a hearing notice, through advocates on record, who fails to attend the hearing must show sufficient cause for non-appearance before a rehearing can be granted.

Holding

Yes. Where an application is heard ex parte after service on the respondent's advocates on record, the absent party must demonstrate that they were prevented from attending for sufficient cause; absent such demonstration, the ex parte orders stand.

Reasoning

The court accepted the principle that a court may proceed to hear an application where a respondent who has been served fails to attend. Service of the hearing notice had been effected on June 6, 2000 on Wekhulo & Co. advocates, who were on record for the applicant. That service shifted the burden to the applicant to explain the non-attendance of himself or his advocate. The court found that no explanation at all was offered for Mr. Wekhulo's absence on June 16, 2000, so the threshold of sufficient cause was never met.

p. 2
02

Whether the applicant showed sufficient cause for his advocate's non-attendance at the hearing of June 16, 2000.

Holding

No. The applicant did not even attempt to show what prevented his advocate, Mr. Wekhulo, from attending the hearing.

Reasoning

The applicant's case rested on the allegation that the application of May 2, 2000 had not been served on him personally but on his stepmother, Joyun, and that he only learned of the ex parte order on February 17, 2001. The court was not persuaded, because the hearing notice had in fact been served on his advocates on record. The applicant offered nothing to explain the advocates' failure to attend, and the court expressly agreed with the respondent that no sufficient cause had been demonstrated.

p. 2
03

Whether the application for rehearing under rule 55(4) was brought within time.

Holding

No. The applicant had 30 days from June 21, 2000, when Mr. Wekhulo indicated he had instructions in the matter, to bring the rule 55(4) application; filing it on March 20, 2001 was out of time.

Reasoning

The court computed the window for a rehearing application not from the applicant's alleged date of knowledge but from June 21, 2000, the date Mr. Wekhulo indicated that he had instructions in the matter. The applicant was allowed thirty days from that date to move under rule 55(4). The application, dated March 16, 2001 and filed on March 20, 2001, fell far outside that period, and its lateness independently justified dismissal even if sufficient cause had been shown.

p. 2

Legal principles established

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  • A party who was served with a hearing notice, including service effected through advocates on record, but who does not attend court when the application is heard, must show that they were prevented from appearing for sufficient cause before ex parte orders can be set aside and the matter reheard.
  • An application under rule 55(4) of the Court of Appeal Rules for a rehearing must be brought within 30 days, reckoned from the date the party's advocate indicates that he has instructions in the matter.

Court orders

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  1. 1.The applicant's application dated March 16, 2001, seeking a rehearing of the respondent's application of May 2, 2000 and the setting aside of the orders made on June 16, 2000, is dismissed.
  2. 2.The applicant to pay the costs of the application ('the application is dismissed with costs').
On appeal from
Court of Appeal (ex parte decision of June 16, 2000 on the respondent's application of May 2, 2000 for extension of time; the intended appeal lay from a judgment of the superior court delivered April 12, 1996)
Jurisdiction invoked
Rule 55(4) of the Court of Appeal Rules - application for a rehearing of an application heard ex parte and for setting aside the orders made on June 16, 2000

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, "Joseph Matafari Situma v Nicholas Makhanu Cherongo [2001] KECA 157 (KLR)", Case Analysis (2001). Not stated in the judgment copy. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2001/157/eng@2001-11-23

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