Joseph Matafari Situma v Nicholas Makhanu Cherongo [2001] KECA 157 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#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.
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.
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.
Whether the applicant showed sufficient cause for his advocate's non-attendance at the hearing of June 16, 2000.
No. The applicant did not even attempt to show what prevented his advocate, Mr. Wekhulo, from attending the hearing.
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.
Whether the application for rehearing under rule 55(4) was brought within time.
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.
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.
Legal principles established
#- 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
#- 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.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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.