James Mwangi Chege v Bernard Kamau Mathu & Dominic Njoroge Mathu (Civil Application 296 of 2009) (Civ) [2013] KECA 267 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a dismissed injunction application, ruling that service of hearing notice on the wrong advocates is sufficient cause for missing court.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellant has provided sufficient and credible reasons to explain their absence on 20th June 2012 when the application came up for hearing, so as to justify reinstatement of the dismissed application under Rule 56(3) of the Court of Appeal Rules
Key legal issues
#Whether the appellant showed sufficient cause for non-attendance under Rule 56(3)
Yes - the hearing notice was served on former advocates, the former advocates communicated a date for the main appeal rather than the application, and the registry gave no date on enquiry, so the absence was not the appellant's fault.
The court found as fact that notice went to Gitonga Kinyanjui Advocates, who had been replaced, and that their letter of 23rd March 2012 referred to the hearing of the main appeal, not the application. Enquiries at the registry yielded no hearing date. The court therefore held that the hearing date could not reasonably have been within counsel's knowledge, amounting to sufficient cause under Rule 56(3), warranting reinstatement.
Legal principles established
#- Under Rule 56(3) of the Court of Appeal Rules, a party in whose absence an application was dismissed may have it restored if he shows he was prevented by sufficient cause from appearing when the application was called on for hearing.
- A party who has taken all reasonable steps to ascertain a hearing date, but was never informed of it because the hearing notice was served on the wrong advocates and the registry could not provide the date, has shown sufficient cause for non-appearance.
Court orders
#- 1.The orders of 20th June 2012 dismissing the application are set aside
- 2.The application dated 3rd October 2009 is reinstated and to be set down for hearing on a priority basis
- 3.Costs to be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1587 of 2001
- Jurisdiction invoked
- Rule 56(3) of the Court of Appeal Rules
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
where an application has been dismissed, the party in whose absence the application was determined may apply to the Court to restore the application for hearing, if he can show that he was prevented by any sufficient cause from appearing when the application was called on for hearing.
We therefore allow the application, set aside the orders of 20 th June2012 and order that the application dated 3rd October 2009 be and is hereby reinstated and be set down for hearing on a priority basis.
While they may be correct in their belief with respect to the lack of preservation orders, there is an appeal from the decision of the High Court in respect of the suit property pending before this court.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Mwangi Chege v Bernard Kamau Mathu & Dominic Njoroge Mathu (Civil Application 296 of 2009) (Civ) [2013] KECA 267 (KLR)", Case Analysis (2013). Civil Application No. Nai 296 of 2009 (UR 204/2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2013/267/eng@2013-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.