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Court of AppealDismissedCivil Application No. NAI. 384 of 1996

Ramesh Chandra Jantilal Sheth & 2 others v V.J. Ruparalia T/A Ruparalia & Co [2002] KECA 49 (KLR)

Court of Appeal of Kenya
25 June 2002
ROR.S.C. OmoloASA.B. ShahSBS.E.O. Bosire
187 words in judgment
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The bottom line

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Kenya's Court of Appeal dismissed a request to pause a court order because the people who filed it and their lawyer never showed up.

What this practically means

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Executive summary

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This brief records a short order of the Court of Appeal at Nairobi made on 25 June 2002 in Civil Application No. NAI. 384 of 1996. The applicants, Ramesh Chandra Jantilal Sheth, Jantilal Hansraj Sheth and Chandrakant Jantilal Sheth, trading as Maganlal & Company, had moved the court for a stay of execution in an intended appeal against an order of the High Court of Kenya at Nairobi (Juma, J) dated 9 May 1996 in H.C.C.C. No. 1053 of 1995. The respondent was V.J. Ruparalia, trading as Ruparalia & Co. The coram comprised Omolo, Shah and Bosire, JJ.A, who issued a single order of the court; no judge wrote separately and the bench was unanimous. The hearing date of the motion had been fixed by consent. When the motion was called on, counsel for the applicants was absent, as were the applicants themselves, and the court recorded that the reason for the absence was unknown to it. Invoking rule 55(1) of the Court of Appeal Rules, the court dismissed the motion and awarded the respondent the costs of the motion. The order does not address the merits of the intended appeal or of the stay application, and it does not disturb the High Court order of 9 May 1996, which stands unaffected. Its practical effect is that the applicants forfeited the opportunity to have the stay motion heard on that occasion and became liable for the respondent's costs. No authorities were cited and no provision other than rule 55(1) of the Court of Appeal Rules was engaged. For practitioners, the order is a reminder that the Court of Appeal enforces rule 55(1) against applicants who fail to attend hearings, even where the hearing date was fixed by consent.

Questions the Court framed

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

  1. 1.Whether the applicants' motion for stay of execution, listed for hearing on a date fixed by consent, should be dismissed for non-attendance of the applicants and their counsel under rule 55(1) of the Court of Appeal Rules

Key legal issues

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01

Consequence of non-attendance by an applicant and counsel at a hearing date fixed by consent

Holding

The motion for stay of execution was dismissed under rule 55(1) of the Court of Appeal Rules, with the costs of the motion awarded to the respondent.

Reasoning

The hearing date of the motion had been fixed by consent of the parties. When the motion was called on, counsel for the applicants was absent and so were the applicants themselves, with no explanation offered to the court, which recorded that the reason for the absence was unknown to it. The court treated the non-attendance as grounds for dismissal under rule 55(1) of the Court of Appeal Rules rather than adjourning the motion or proceeding to determine it in the applicants' absence. It dismissed the motion and awarded the respondent the costs, leaving the applicants to pursue the intended appeal without the interim protection sought.

p. 2

Legal principles established

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  • Where the hearing date of a motion in the Court of Appeal has been fixed by consent and neither counsel for the applicant nor the applicant attends, the court will dismiss the motion under rule 55(1) of the Court of Appeal Rules and may award the costs of the motion to the responding party.

Court orders

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  1. 1.The motion is dismissed under rule 55(1) of the Court of Appeal Rules.
  2. 2.The respondent shall have the costs of the motion.

The bench

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

RO
majority
AS
majority
SB
majority
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 1053 of 1995
Jurisdiction invoked
Court of Appeal Rules - the motion (an application for stay of execution in an intended appeal) was dismissed under rule 55(1) of the Court of Appeal Rules; the order does not state the rule under which the application itself was brought.

Relief refused

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Stay of execution of the High Court order of 9 May 1996 in H.C.C.C. No. 1053 of 1995 pending the intended appeal

The motion was dismissed under rule 55(1) of the Court of Appeal Rules because neither the applicants' counsel nor the applicants appeared on a hearing date that had been fixed by consent, and no explanation for the absence was offered.

p. 2

Costs

The respondent shall have the costs of the motion.

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.

The hearing date of this motion was fixed by consent. But Counsel for the applicant for some reason unknown to us is not present nor is his client, the applicant in the motion.
p. 2Non-attendance by applicant and counsel at a consent-fixed hearing
That being the case the motion is dismissed under rule 55(1) of the Court of Appeal Rules. The respondent shall have the costs of the motion.
p. 2Final orders - dismissal under rule 55(1) and costs of the motion

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, "Ramesh Chandra Jantilal Sheth & 2 others v V.J. Ruparalia T/A Ruparalia & Co [2002] KECA 49 (KLR)", Case Analysis (2002). Civil Application No. NAI. 384 of 1996. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2002/49/eng@2002-06-25

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