Ngilimani & 21 others v Rift Valley Textile Limited (Civil Appeal 44 of 2019) [2023] KECA 988 (KLR)
The bottom line
#Kenya's Court of Appeal reinstated a lawsuit dismissed after lawyers missed a hearing due to a wrong court date they were mistakenly given.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appellants have satisfied the grounds for setting aside the dismissal order made by the trial court on November 22, 2018
Key legal issues
#Whether the dismissal of the appellants' suit for non-attendance ought to have been set aside because the advocates' non-attendance was caused by misleading information about the hearing date conveyed by the advocate holding brief.
Yes. The non-attendance on June 22, 2017 was on account of misleading information given by Mr Magatta, the advocate holding brief, and the trial judge misapprehended the reasons given and erred in finding a 30-day delay since the appellants only learnt of the dismissal on July 26, 2017.
The court found it undisputed that the advocates failed to attend on June 22, 2017 solely because Mr Magatta, who held brief on April 28, 2017, informed them the matter was scheduled for July 26, 2017. The judge's holding that the absence 'has not been addressed' misapprehended the record, and her finding of over 30 days of inaction was factually wrong because the appellants learnt of the dismissal on July 26, 2017 and filed the application on August 21, 2017. Denying reinstatement on those mistaken premises produced an injustice by depriving the appellants of a hearing.
Whether the trial judge properly exercised her discretion in refusing to set aside the dismissal order.
No. The discretion must be exercised judiciously to avoid injustice; here its exercise was wrong and resulted in injustice, so the orders of November 22, 2018 cannot stand.
Applying the Shah v Mbogo principles as restated in Richard Ncharpi Leiyagu, the court held that the discretion to set aside ex parte decisions exists to avoid injustice from accident, inadvertence or excusable mistake. Since the appellants' non-attendance flowed from an excusable communication error rather than deliberate obstruction or delay, the judge's refusal to reinstate the suit amounted to a wrong exercise of discretion that denied the appellants substantive justice.
Legal principles established
#- The discretion to set aside ex parte proceedings or decisions must be exercised judiciously, to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, and not to assist a party who deliberately sought to obstruct or delay the course of justice.
- A first appellate court is required to re-appraise the evidence and draw its own inferences before arriving at an independent conclusion.
Court orders
#- 1.The appeal is allowed and the ruling and orders dated November 22, 2018 are set aside
- 2.The notice of motion dated August 21, 2017 is allowed in terms of prayer II thereof (setting aside the dismissal orders of June 22, 2017)
- 3.The appellants' claim be heard on merit before another judge other than Mbaru, J
- 4.The appellants shall have the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (ELRC, Nakuru)
- Nakuru ELRC No 191 of 2016 (originally Eldoret HCCC No 124 of 2006)
- Jurisdiction invoked
- First appellate jurisdiction under rule 31 of the Court of Appeal Rules 2022 (appeal against ruling and orders of the High Court)
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.
This discretion (to set aside ex parte proceedings or decision) is intended so to be exercised to avoid injustice or hardship resulting from accident, inadvertence, or excusable mistake or error, but is not designed to assist a person who has deliberately sought, whether by evasion or otherwise, to obstruct or delay the course of justice.
We are required as a first appellate court by rule 31 of the Court of Appeal Rules 2022, to re-appraise the evidence and to draw inferences before coming to our own independent conclusion.
Accordingly, we find merit in the appellants' appeal and allow the same and set aside the ruling and orders dated November 22, 2018 and substitute the same with an order allowing the notice of motion dated August 21, 2017 in terms of prayer II thereof, and further direct that the appellants claim be heard on merit before another judge other than Mbaru, J.
Issues in the judgment
#Ground (ii) of the memorandum of appeal states the lawyers learned of the dismissal on 'July 21, 2017' while the body of the judgment and ground (ii) elsewhere state July 26, 2017.
The coram as printed gives the first judge's name as 'F. SICHALE', which may be a typographical rendering; the brief records it as printed.
The judgment contains typographical errors ('stablished', 'profiiered', 'oiered', 'efiectively', 'suficient', 'locus classicuss'), indicating an imperfect official copy.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngilimani & 21 others v Rift Valley Textile Limited (Civil Appeal 44 of 2019) [2023] KECA 988 (KLR)", Case Analysis (2023). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/988/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.