Wilson Cheboi Yego v Samuel Kipsang Cheboi
The bottom line
#Kenya's Court of Appeal reinstated an appeal dismissed when a lawyer mixed up hearing dates, but made the winning side pay the other side's costs.
What this practically means
#Executive summary
#Key legal issues
#Compliance with the time requirement for restoration under Rule 102(3)
The application lodged on 6th December, 2018, a day after the dismissal on 4th December, 2018, was within thirty days and therefore satisfied the first condition.
Rule 102(3) requires that an application for restoration be made within thirty days of the decision of the Court. The appeal was dismissed on 4th December, 2018 and the notice of motion was filed on 6th December, 2018. The court held this was expeditious and within the mandatory period, satisfying the first condition for reinstatement.
Whether the mis-diarization of the hearing date by counsel amounted to sufficient cause
The explanation that counsel was served with two hearing notices for consecutive days and inadvertently diarized both appeals for 5th December, 2018 was candid, forthright and excusable, amounting to sufficient cause.
The court accepted counsel's sworn explanation of receiving two hearing notices, one for 4th December 2018 in this appeal and one for 5th December 2018 in another appeal, and of inadvertently diarizing both for 5th December. Although no court cause list was annexed proving the second listing, the application was lodged a day after dismissal. Guided by the dicta in Belinda Murai and Philip Chemwolo, the court held the mistake excusable.
The nature of 'sufficient cause' under the proviso to Rule 102(1)
'Sufficient cause' is not rigidly defined; it must be rational, plausible, logical, convincing, reasonable and truthful, and receives a liberal construction to advance substantial justice where there is no negligence or want of bona fides.
The court drew on Okiya Omtata Okoiti, adopting Musinga, JA's definition that sufficient cause must be rational, plausible, logical, convincing, reasonable and truthful, leaving no unexplained gaps. It also adopted the Tanzanian Court of Appeal's liberal construction approach and the Indian Supreme Court's holding in Parimal v Veena that sufficient cause excludes negligence or want of bona fides, with discretion exercised judiciously on the facts of each case.
Legal principles established
#- Under Rule 102 of the Court of Appeal Rules, an applicant for reinstatement of an appeal dismissed for non-attendance must satisfy two conditions: the application must be made within thirty days of the dismissal, and the applicant must show he was prevented by sufficient cause from attending the hearing.
- What constitutes 'sufficient cause' is a question of fact to be determined in the varied and special circumstances of each case, and an honest, excusable mistake by counsel in diarizing a hearing date can amount to sufficient cause.
- A mistake by counsel, where honestly explained and promptly rectified, ought not to be visited on the client; unless there is fraud or intention to overreach, an error or default can be put right by payment of costs.
Court orders
#- 1.The ruling and order dated 4th December, 2018 dismissing the appeal is set aside
- 2.The applicant's notice of motion dated 6th December, 2018 is allowed
- 3.Civil Appeal No. 2 of 2017 is restored for hearing
- 4.Costs of the application are awarded to the respondent in any event
- On appeal from
- Court of Appeal
- Civil Appeal No. 2 of 2017 (dismissal order of 4th December 2018)
- Jurisdiction invoked
- Rule 102(1) of the Court of Appeal Rules - proviso permitting restoration of an appeal dismissed for non-attendance where the appellant was prevented by sufficient cause
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Francis Nyaga Njeru v Frank Logistics Limited & 8 others[2026] KECA 955 (KLR)15 May 2026
- Jacob Kabutu Kangangi v Ernest M. Mugambi R. Iburi & 1 other[2026] KECA 265 (KLR)13 Feb 2026
- Jacob Kabutu Kangangi v Ernest M. Mugambi R. Iburi & 1 other[2025] KECA 1491 (KLR)19 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Wilson Cheboi Yego v Samuel Kipsang Cheboi", Case Analysis (2019). Civil Appeal (Application) No. 2 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/638/eng@2019-06-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.