Maseno University v Riley Facon Security Services Limited & another [2016] KECA 351 (KLR)
The bottom line
#The Court of Appeal refused to reinstate Maseno University's dismissed stay application, because the University's own delays and lack of prejudice outweighed the excuse of counsel's absence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether sufficient cause was shown for the dismissal of the applicant's Rule 5(2)(b) application on 23rd September 2015 so as to justify its reinstatement under Rule 56
- 2.Whether the mistakes or absence of counsel should be visited on the innocent applicant
- 3.Whether the applicant would suffer prejudice, given that it had instructed another firm of advocates in the High Court
Key legal issues
#Whether sufficient cause was shown to justify reinstatement of the dismissed Rule 5(2)(b) application
The application for reinstatement was refused. Although counsel requested that the file be held aside, by the time it was called out neither counsel nor Mr. Wasuna was present, resulting in dismissal. The matter had previously been adjourned at the instance of the same counsel, and the applicant had engaged another law firm in the High Court, occasioning no prejudice.
The court weighed the applicant's explanation against its dilatory conduct. A prior adjournment had already been granted at the instance of Mr. Wasuna. The explanation of the morning's confusion did not excuse the ultimate absence of both counsel when the matter was called out a second time. The engagement of a substitute law firm in the High Court meant restoration would serve no purpose and cause no prejudice to the applicant if refused.
Whether the mistakes of counsel should be visited on the innocent litigant
The court declined to exercise its discretion in the applicant's favour on these facts, holding that the applicant had not established sufficient grounds for restoration despite the general principle against visiting counsel's mistakes on a client.
Counsel for the applicant invoked the principle that mistakes of counsel should not be visited on the innocent client. The court accepted that the principle exists but found the circumstances - a prior adjournment and the appointment of new advocates - meant the discretion should not be exercised to restore the application. The absence of prejudice to the applicant was decisive.
Legal principles established
#- A party seeking reinstatement of a suit or application dismissed for non-attendance must demonstrate sufficient cause for the non-attendance, and the court will consider prior dilatory conduct and any prejudice or absence of prejudice to the applicant.
- Where a party has already appointed another law firm to represent it in the matter, no prejudice is occasioned by refusing restoration, and the mistakes of counsel will not be visited on the client where the applicant is otherwise blameless.
Court orders
#- 1.The application dated 13th October 2015 seeking reinstatement of the application dated 25th March 2015 is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kisumu
- H.C.C.C. No. 22 of 2014
- Jurisdiction invoked
- Rule 56 of the Court of Appeal Rules (application for reinstatement of an application under Rule 5(2)(b))
Relief refused
#Reinstatement or restoration of the application dated 25th March 2015 (stay of further proceedings in H.C.C.C. No. 22 of 2014)
The applicant had not made out sufficient grounds; the matter had previously been adjourned at counsel's instance, and the applicant had already appointed another law firm to represent it in the High Court so no prejudice was occasioned
Costs
The application dated 13th October 2015 is dismissed with costs to the 1st respondent
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.
We are therefore not satisfied that sufficient grounds have been made out for us to grant the order for restoration of the application dated 25th March 2015.
The application dated 13th October 2015 is hereby dismissed with costs to the 1st respondent.
the applicant has already appointed another law firm to represent it in the matter in the High Court and agree with counsel for the 1st respondent that in the circumstances no prejudice is occasioned to the applicant.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maseno University v Riley Facon Security Services Limited & another [2016] KECA 351 (KLR)", Case Analysis (2016). Civil Application No. 10 of 2015 (UR 8/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/351/eng@2016-07-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.