La Belle International Limited & 1 other v Fidelity Commercial Bank Limited & 1 other
The bottom line
#Kenya's Court of Appeal restored an appeal dismissed when a clerk's diary mistake caused lawyers to miss the hearing, but the applicants paid costs.
What this practically means
#Executive summary
#Key legal issues
#Timeliness of the restoration application
The application filed three days after the dismissal was within the 30-day period prescribed by Rule 102(3) and was therefore filed in time.
Rule 102(3) requires an application for restoration under the proviso to sub-rule (1) to be made within thirty days of the decision of the Court dismissing the appeal, or in the case of an unserved party, within thirty days of first hearing of the decision. Since the appeal was dismissed on 3rd February 2015 and the motion was filed three days later, there was no dispute that the application was filed within time.
Whether the inadvertent diarising error by counsel's secretary constituted sufficient cause
The secretary's error in entering the hearing date of 3rd February 2015 in a 2014 diary constituted sufficient cause preventing the advocate from attending, warranting restoration of the appeal.
The Court accepted that counsel received the hearing notice in time but his secretary mistakenly entered the date in the wrong diary, causing non-attendance. Although the respondents objected that the secretary had not sworn an affidavit, the Court held that counsel's own affidavit disclosing the source of his information served adequately in the circumstances. The Court acknowledged the error appeared careless but found it excusable and sufficient within the meaning of Rule 102.
Status of the underlying High Court suit
The Court declined to determine whether the High Court suit had been dismissed or reinstated, as that question was not for it on this application.
The respondents argued that the conditional reinstatement by Ogola, J. had not been complied with, so the suit remained dismissed and the appeal was moot. Counsel for the applicants countered that the condition to provide security could only arise on agreement or determination of the sum owed. The Court found itself unable to resolve the status of the suit and confined itself to restoring the appeal, reasoning that arguing it on its merits would prejudice no one.
Legal principles established
#- An inadvertent error by counsel's staff in diarising a hearing date, even one appearing careless, may constitute sufficient cause under the proviso to Rule 102(1) justifying restoration of an appeal dismissed for non-attendance, and an affidavit by counsel disclosing the source of his information may suffice where the staff member has not sworn an affidavit.
- An application for restoration of an appeal dismissed for non-appearance must be made within thirty days of the decision dismissing the appeal.
Court orders
#- 1.The appeal dismissed on 3rd February 2015 for want of attendance is restored for hearing
- 2.The restored appeal shall be fixed for hearing with a view to its disposal
- 3.The applicants (appellants) shall pay the costs of the application to the respondents
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 786 of 2002
- Jurisdiction invoked
- Rules 4 and 102(1)(3) of the Court of Appeal Rules (application for restoration of an appeal dismissed for non-attendance)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "La Belle International Limited & 1 other v Fidelity Commercial Bank Limited & 1 other", Case Analysis (2015). Civil Appeal (Application) No. 1 of 2004. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2015/656/eng@2015-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.