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Court of AppealPartially AllowedNot stated in the judgment

Mukherjee v Karachiwalla Nairobi Limited (Civil Appeal (Application) 304 of 2015) [2024] KECA 1676 (KLR)

Court of Appeal
22 November 2024
FTF. TuiyottJLJ. LesiitFNF. W. Ngenye-Macharia
1,856 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal reinstated an appeal dismissed after lawyers missed a hearing email sent to their firm's general inbox, not a lawyer's personal address.

What this practically means

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Executive summary

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This was an application before the Court of Appeal at Nairobi, brought under Rule 105(3) of the Court of Appeal Rules, seeking reinstatement of the applicant Sanjivan Mukherjee's appeal, which had been dismissed on 26th April 2021 for non-appearance of the appellant. The applicant explained that the hearing notice had been sent to the general email address of his erstwhile advocates' firm (info@mohammedmuigai.com) rather than to the personal email of the advocate with conduct of the matter, and so went unnoticed. Because the application was brought well outside the 30-day window in Rule 105(3), Ngenye-Macharia, JA had on 9th February 2024 granted extension of time to file it. The respondent, Karachiwalla Nairobi Limited, opposed the application, arguing that no sufficient reason had been given for the non-attendance, that the delay since the applicant learnt of the dismissal in October 2022 was unexplained, and that keeping it away from the fruits of its judgment was prejudicial. The court (Tuiyott, Lesiit and Ngenye-Macharia, JJA) disposed of the delay issue on the basis that the single judge had already deliberated on and excused it. On sufficiency of cause, the court found corroboration on the record that the notice went to the general firm email while the advocate in conduct had a personal address, describing it as a human failing. The respondent's alleged prejudice was a bare, unelaborated assertion capable of compensation by costs. The court allowed the motion in terms of prayers (2) and (3), reinstating the appeal so the parties could have their appeal heard on the merits, with costs of the application to the respondent. Judgment was delivered at Nairobi on 22nd November 2024.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has shown sufficient cause under the proviso to Rule 105(1) for his non-attendance when the appeal was called out for hearing on 26th April 2021
  2. 2.Whether reinstatement of the appeal would cause the respondent undue prejudice that cannot be compensated by costs

Key legal issues

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01

Whether inadvertent oversight by counsel in monitoring the general email address of the firm constitutes sufficient cause for non-attendance

Holding

Yes. Where the hearing notice was sent to the firm's correct general email address while the specific advocate with conduct of the matter had a personal email address, the court found it believable that the hearing information went unnoticed, describing it as a human failing excusable in the interests of justice.

Reasoning

The court noted corroborating evidence on the record: the hearing notice and virtual session link were addressed to the firm's general email (info@mohammedmuigai.com), while the advocate in conduct had a personal address (gkhaseke@mohammedmuigai.com). The court distinguished cases where a party's indolence or the other side's immeasurable prejudice justifies letting a party suffer counsel's mistake, finding no indolence here and no elaborated, uncompensable prejudice.

p. 3
02

Whether an application for reinstatement made out of time could be entertained

Holding

Yes. The issue of delay in bringing the application need not be addressed because a single judge had already considered and allowed the motion for extension of time to bring the application out of time.

Reasoning

The applicant was in breach of Rule 105(3), which requires restoration applications within 30 days. Ngenye-Macharia, JA had, on 9th February 2024, deliberated on whether there was sufficient reason to excuse the delay and granted extension. The full court therefore held the delay issue resolved and did not revisit it.

p. 2

Legal principles established

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  • The power to reinstate an appeal dismissed for non-appearance is discretionary and requires the applicant to show sufficient cause under the proviso to Rule 105(1), balancing reasonable grounds for reinstatement against prejudice to the opposite party, bearing in mind that dismissal for non-attendance is draconian and should be employed sparingly.
  • Prejudice asserted in opposition to reinstatement must be elaborated; where it can be compensated by an order of costs, it is not sufficient to defeat the discretion to reinstate.

Court orders

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  1. 1.The notice of motion dated 15th February 2024 is allowed in terms of prayers (2) and (3), reinstating the appeal dismissed on 26th April 2021 for non-appearance
  2. 2.Costs of the application shall be to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

FT
majority
JL
majority
FN
majority
Jurisdiction invoked
Rule 105(3) of the Court of Appeal Rules (application for reinstatement of an appeal dismissed for non-appearance)

Relief refused

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The respondent's opposition to reinstatement on grounds of delay and prejudice

The delay was already excused by the single judge's extension of time, and the prejudice alleged was not elaborated beyond a bare assertion that could be compensated by costs

p. 4

Costs

Costs shall, in any event, be to the respondent.

Quotable passages

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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 allow the notice of motion dated 15th February 2024 in terms of prayers (2) and (3). Costs shall, in any event, be to the respondent.
p. 4Final orders - reinstatement of the appeal
The power to reinstate an appeal or application that has been dismissed for non-appearance is discretionary and is exercised on certain consideration.
p. 2Nature of the reinstatement discretion
In an application for reinstatement of a court process, there is need to balance the requirement as to whether reasonable grounds have been proferred for reinstatement and the prejudice to be sufiered by the opposite party
p. 2Balancing test for reinstatement (quoting Nambuye, JA in Ngugi v Thogo)
A mistake is a mistake. It is no less a mistake because it is an unfortunate slip.
p. 3Mistake of counsel - Belinda Murai principle
We think, and so hold, that justice is better served in the circumstances of this case in allowing the parties to have their day in a merit resolved appeal.
p. 4Rationale for reinstatement

Issues in the judgment

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minor

The applicant's affidavit states he learnt of the dismissal on 25th October 2022, while the judgment elsewhere records the date as 26th October 2022.

minor

The case number of this appeal/application and the neutral citation are not stated anywhere in the judgment.

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, "Mukherjee v Karachiwalla Nairobi Limited (Civil Appeal (Application) 304 of 2015) [2024] KECA 1676 (KLR)", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1676/eng@2024-11-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.