Republic v Joseph Mburu Gitau and 635 Others
The bottom line
#Kenya's Court of Appeal reinstated a State appeal that was struck out because a lawyer's clerk forgot to file hearing details — mistakes by counsel won't automatically kill a case.
What this practically means
#Executive summary
#Key legal issues
#Whether the applicants showed sufficient cause under Rule 56(3) to set aside the ex parte orders
The Court found that counsel's failure to attend was due to an inadvertent mistake by the counsel's clerk, which constitutes sufficient cause, and that reinstatement would not prejudice the respondents.
The Court applied Rule 56(3), which allows a party in whose absence an application was determined to seek restoration if prevented by sufficient cause. Citing Kiarie v Njoroge, Murai v Wainaina (No. 4) and Grindlays Bank International, it held that mistakes by counsel or clerks should not, depending on the circumstances, deprive a deserving litigant of a favourable exercise of discretion. Substantive justice under Sections 3A and 3B of the Appellate Jurisdiction Act favoured reinstatement given the value of the property at stake and absence of demonstrated prejudice to the respondents.
Whether the issues of non-service of the Notice of Appeal and the appeal being against the wrong decree could be determined in this application
The Court held those issues could not appropriately be addressed in the review application and should be left to the hearing of the reinstated motion.
The respondents had raised non-service of the Notice of Appeal and the fact that the Notice sought to appeal a decree other than that of Nyamu, J. The Court confined itself to the question of sufficient cause for non-attendance, holding that the service and notice issues were matters properly argued when the reinstated motion came up for hearing, not in an application to set aside ex parte orders.
Legal principles established
#- Where a party is absent from a hearing due to a mistake or inadvertence of counsel or counsel's clerk, the Court may excuse the mistake in the interest of justice and restore the application under Rule 56(3) if sufficient cause is shown, provided the other party suffers no prejudice.
Court orders
#- 1.The order of 20th July 2015 striking out the Notice of Appeal is set aside
- 2.The motion dated 8th June 2011 is reinstated for hearing
- 3.Costs of this application granted to the respondents
- 4.The reinstated motion to be given a priority date for hearing
- On appeal from
- Court of Appeal (single judge panel)
- HCC Misc. Civil Appl. No. 673 of 2005
- Jurisdiction invoked
- Rule 56(3) of the Court of Appeal Rules and Sections 3A and 3B of the Appellate Jurisdiction Act (inherent jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Joseph Mburu Gitau and 635 Others", Case Analysis (2015). Civil Application No. NAI. 159 of 2011. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/114/eng@2015-12-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.