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Court of AppealAllowedCivil Application No. NAI. 159 of 2011· [2015] KECA 114 (KLR)

Republic v Joseph Mburu Gitau and 635 Others

Court of Appeal
18 December 2015
2,030 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a review application by the State parties (Republic, the Commissioner of Police, the Commissioner of Lands and the Attorney General) under Rule 56(3) of the Court of Appeal Rules, seeking to set aside ex parte orders made on 20th July 2015 by Okwengu, Mwera and J. Mohammed, JJ.A., allowing a motion by Joseph Mburu Gitau and others and striking out the applicants' Notice of Appeal for non-attendance. Counsel for the applicants explained that a clerk, Vincent Oichoe Oseko, was served with the hearing notice but inadvertently failed to bring it to the attention of the litigation counsel, Mr. Motari Matunda, who had conduct of the matter. The respondents left the reinstatement question to the Court but flagged two substantive issues: non-service of the Notice of Appeal and that the Notice purported to appeal a decree other than that of Nyamu, J. The Court, comprising Githinji, Koome and G.B.M. Kariuki, JJ.A., held that a mistake or inadvertence by counsel or their clerk constitutes sufficient cause under Rule 56(3), drawing on Kiarie v Njoroge, Murai v Wainaina (No. 4) and Grindlays Bank International, and on the overriding objective in Sections 3A and 3B of the Appellate Jurisdiction Act. The Court set aside the order of 20th July 2015, reinstated the motion dated 8th June 2011, awarded costs of the application to the respondents, and directed a priority hearing date. The issues of non-service and the wrong decree were left for the substantive hearing of the reinstated motion.

Key legal issues

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01

Whether the applicants showed sufficient cause under Rule 56(3) to set aside the ex parte orders

Holding

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.

Reasoning

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.

p. 4
02

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

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The order of 20th July 2015 striking out the Notice of Appeal is set aside
  2. 2.The motion dated 8th June 2011 is reinstated for hearing
  3. 3.Costs of this application granted to the respondents
  4. 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

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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, "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.